Organised by the Irish Centre for European Law, in Dublin

The work of the Office of the Commissioner for Environmental Information

22 November 2018

Thank you for inviting me to your conference.  I am pleased to be with you here today and I welcome a forum which presents an opportunity to listen to various perspectives on the role of the Aarhus Convention in Ireland.  It also allows me to speak about my Office to a uniquely focussed audience. 

My speech will be in three parts.

First, I will talk about the Office; who we are, what we do and (most especially) how we do it, etc.

Then I will describe some of the particular challenges we face.

Before concluding, I will look to the future.

The Office of the Commissioner for Environmental Information, otherwise known as “OCEI”, was established by the AIE Regulations over eleven years ago.  It was made clear to my predecessor at the time that the Office was established under article 6(2) of the AIE Directive.  That means that it is an independent and impartial body established by law in which the acts or omissions of public authorities may be reviewed and whose decisions may become final.  Under the AIE Regulations, OCEI’s sole role is to review decisions made by public authorities on AIE requests.  We have no role with respect to any acts or omissions of public authorities in relation to their obligations under article 5 of the Regulations to maintain environmental information.  Neither do we have any role in providing guidance on access to environmental information.  Public authorities are themselves responsible for providing guidance to the public.   The Minister for Communications, Climate Action and Environment is responsible for implementing the legislation, publishing guidance and generally ensuring that public authorities are aware of their obligations. His Department also deals with Ireland’s international obligations under the Directive and the Convention. It takes the lead, for example, in responding to “communications” made to the ACCC about Ireland.

The Regulations provide that the holder of the Office “shall be the person who, for the time being, holds the office of Information Commissioner”.  I was appointed as Ombudsman and Information Commissioner in late 2013. So that explains how I came to be the Commissioner for Environmental Information. 

The Office is co-located in Lower Leeson Street, Dublin, with the Office of the Ombudsman; the Office of the Information Commissioner; the Standards in Public Office Commission; and the Commission for Public Service Appointments.  Although OCEI is the smallest of these offices, it benefits by sharing their collective resources – such as HR, finance, ICT, and legal resources. OCEI has access to in-house legal advisors.   We also have a legal services contract between the Office of the Ombudsman and Philip Lee Solicitors. Contrary to what some people think, as an independent Office holder I have no access to advice from the Office of the Attorney General.   When defending challenges in the Courts our legal costs must be met from the Vote of the Office of the Information Commissioner.

I mentioned that OCEI is a small Office. The AIE Regulations provide that, as the Office holder, I “shall be assisted by the staff of the Office of the Information Commissioner and by such other resources as may from time to time be available to that Office”.  How does that work in practice?  OCEI is managed by Liz Dolan, a Principal Officer and very experienced Senior Investigator with the OIC.  The OIC’s Support Unit assists OCEI by performing administrative functions related mainly to opening and closing of appeal cases and maintaining the case tracking system. 

The bulk of the case work is done by investigators.  I currently have 3.5 investigators working full time on OCEI cases. 

To give you an idea of our workload, in recent years we received 52 appeals a year.  Last year we rejected six appeals as invalid; seven were withdrawn; one case was settled; and two were discontinued.  As a result, last year I closed 35 cases by formal decision.

I think I have covered the “who”, “where”, “what” and “why” aspects of the Office and I will now move on to talk about “how” we go about our work.  I expect that this is what you will be most interested in.  

Every valid appeal is investigated.  Unless there is a settlement, or the appeal is withdrawn, or discontinued by the appellant, every case file is prepared for submission to me.  When I receive a case file, I conduct my review. I deliberate alone on each case and make my decision.

The primary purpose of the investigation which precedes my review is to clarify the issues.  You will be well aware, I am sure, that human beings often fail to communicate clearly.  Clarification is best obtained through the asking of pertinent questions.  Much of my investigators’ work involves asking questions of the parties with a view to improving clarity: clarity on what the appellant sought in their request; clarity on the reasons for refusal; clarity on the basis for the appeal; and clarity on the positions of the parties.  Parties rarely request face to face meetings with investigators.  We have generally found such meetings to be unproductive. Anything that a public authority wishes to be taken into account is best put in writing.  In our experience, where appellants ask for a meeting they usually wish to explain how important it is for them to obtain the information they requested.  However, their personal motivation is not a factor which can influence my decision. 

When legal questions arise in the course of an investigation, as they often do, my investigators conduct legal research to see if there is an authority on the point in question. If no authority is found, a purposive interpretation is applied.  In doing so we are guided by the judgment of the Supreme Court in the NAMA case (from 2015), which held that “in order to understand what the statutory instrument means and does…, it is necessary…  to understand exactly what the Directive does and means, which may also mean interpreting the provisions of the Convention”.

 If necessary, legal opinion may be sought from our in-house legal advisors and, where appropriate, from our external legal advisers.  While the AIE Regulations empower me to refer questions of law to the High Court, I have not yet felt it necessary to take that step.   I accept that I must often make decisions in the absence of complete legal certainty.   I understand that my primary function, as holder of the Office, is to use my judgment.  I think it is worth reflecting on the fact that I was appointed to this Office – as was my predecessor Emily O’Reilly - despite not being either a judge or a lawyer.  I think that says something about the intended nature of the Office. I do not operate as a court or hold oral hearings.  I do not take evidence on oath or preside over an adversarial process.  It is very important to understand this.  My Office’s processes are guided by my experience as Information Commissioner and they are both informal and flexible.  Flexibility is important when it comes to responding appropriately to the different issues that arise from case to case.  While we are acutely aware that our processes must be fair, we operate an administrative rather than a judicial system and we must determine our own processes.

In exercising my judgment, I do so by considering the facts and circumstances that prevail when I make my decision and not the facts and circumstances that prevailed when the public authority made the decision that formed the basis for the appeal.

Another important thing to understand is the status of any preliminary view formed on a case that might be communicated by an investigator to the parties.   Any such views reflect the investigator’s view of the issues at a moment in time, before any decisions have been made.  Their views do not constitute decisions.  Only one decision is taken on an appeal that goes all of the way in my Office and it is made by me, as Commissioner for Environmental Information. 

I hope that this gives you an insight into how we go about our task in general.  I will give you some examples of the kind of issues that arise.

In a simple appeal case, the question for my review is whether the continued withholding of environmental information is justified.  Typically, the issues will be whether one or more of the exceptions in articles 8 or 9 of the AIE Regulations apply, and if they do, whether the public interest in disclosure outweighs the interests served by refusal.  You will appreciate that this “weighing of interests” is not a mathematical or scientific exercise.  It is a question of judgment. 

Even in such “simple” cases, challenging questions can arise. For example, what is meant, exactly, by the term “the proceedings of public authorities”?  The High Court has found that Government discussions are not “proceedings”.  But a clear authority on what can otherwise constitute “the proceedings” of public authorities is not yet available.  

In many of the cases, there is an element of “adequacy of search” which, on one level is a “simple” if often time consuming issue.  This usually means that the appellant contends that the public authority holds more environmental information within the scope of the request that is evident from the decision they received.  My approach then is to investigate whether adequate steps have been taken to identify and locate relevant records, having regard to all the circumstances. For instance, the investigator may query whether a particular document was ever created or look for details of what areas were searched and which officers are likely to hold paper or electronic records. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must apply.

So much for simple cases.  Many cases are not at all simple.  For example, one question that often arises is whether an AIE request was manifestly unreasonable.  There is an obvious connection between unreasonableness and the burden that processing a request might impose on a public authority.  This burden should not be underestimated.  Inevitably the degree of burden imposed on a public authority depends to some extent on the staffing resources that the authority allocates to deal with AIE requests.  Often, however, the real burden does not fall on the authority’s “AIE staff” but on its managers and professional staff e.g. engineers - the people most familiar with the subject matter and the records.  It is usually these people who are tasked with being AIE decision makers.  Considerable weight is added to the burden that falls on them by the requirement to identify not just records but “environmental information”.  Appellants sometimes fail to appreciate this and often express the belief that the information they requested is “clearly environmental information”.  It is often far from clear.  A public authority could, for example, search for environmental information by conducting a word search, say for words like “air”, “water”, “flora” or “fauna”.  If such information is located it might be readily identified as environmental information. However, one cannot identify all of the environmental information that might be held by means of an electronic word-search or even by speed-reading a document.  Deciding whether particular information is environmental information often requires time and careful consideration.  It requires a realisation that the legal term “environmental information” includes much more than simply “information on the environment”.  Public authority staff with little experience of AIE matters often fail to appreciate this.

Difficulties often arise when a public authority has not set about identifying environmental information properly.  I sometimes remit such cases back to the public authority. Appellants are sometimes unhappy with this, as they would prefer my Office to determine the matter without further delay.  However, I would ask you to pause for a moment to consider what would happen if I were to do that. Yes, the appellant would be likely to receive a decision sooner.  But at what cost?  Locating all relevant information and then sifting it for environmental information (except in cases where it is obvious that information is environmental information) can be a resource-consuming task. If I were assign my staff to be first to attempt a time-consuming job that the public authority ought to have done, it could encourage public authorities to avoid attempting such tasks and to leave it, instead, to my staff.  Such an outcome would tie my staff up in doing the work of public authorities who best know their own records and their own areas of business and on whom the statutory requirement to make AIE decisions rests. I fear that it would lead to a very slow rate of decision making.  That would not improve access to environmental information.

There is one other point that is worth making about this issue of whether certain information is environmental information or not.  It is this: even when a public authority does not argue that withheld information is not environmental information, I must still satisfy myself that it is environmental information.  This is because my jurisdiction to require the release of information applies only to environmental information.

Stepping back for a moment, it is worth considering why the status of information (as environmental or not) is so often disputed in AIE appeals.  The definition itself is challenging.   While it sets out just six categories of environmental information, there are (I am told) 88 permutations of those categories.  It is true that there is a presumption that environmental information is to be made available to the public to the greatest possible extent.   There is, however, no presumption that information is environmental information to begin with.  I have no knowledge of the 600 or so AIE requests that are made every year which do not come to my Office on appeal.  I suspect, however, that the majority of them do not lead to disputes about whether the information sought is environmental information.  In many of the cases that come to me the status of the information could be argued either way.  Perhaps we shouldn’t be surprised that this issue arises so often in appeals to my Office.  I believe that while some clarity was brought about following the Court of Appeal’s decision in Minch, applying the definition properly still presents challenges.

Another reason why this issue arises so often could be that some people make AIE requests because they cannot make an FOI request, since the body concerned is not an FOI body. Such a situation could lead to people trying to present a request for information as a request for environmental information when it really has little connection with the environment.  My Office does not of course ask appellants why they wish to access the information that they requested, but it has been interesting to see commercial entities making AIE requests seeking copies of commercial contracts from non-FOI bodies.  One could be forgiven for wondering if they are doing so in order to be able to participate in environmental decision making.  Frankly, while I can see that some bodies were fully or partially excluded from the FOI Act for policy reasons, the fact that certain bodies are subject to AIE but not to FOI is an additional complication in the access regime generally. 

Another issue that continues to be challenging is the question of whether an entity that received an AIE request is a public authority within the meaning of the AIE Regulations, either at all or because it claims to hold the requested information in a legislative or judicial capacity.  I do not wish to say much about this, as a number of my decisions in this regard are before the courts.  But some of the most interesting aspects of this matter concern the status of the subsidiaries of public authorities; the status of private entities that provide services that the State used to provide (such as the supply of electricity); and the status of the Courts Service in holding the records of concluded court cases.

Processing AIE appeals takes time.  We invite parties to make submissions and we need to allow them sufficient time in which to do so.  Appeals afford parties with an opportunity to reconsider a matter and, as may be expected, appeals tend to focus the minds of public authorities.  Even when we receive a submission it is often necessary for my investigators to further engage with the party which made the submission in order to obtain sufficient clarity on that party’s position.   It is not unusual, during the course of an investigation, for public authorities to raise arguments that they did not rely on when they gave their earlier decisions on the request.  I have not formed the impression that public authorities do so for the purpose of causing delay.  Indeed, I think that it is almost inevitable that more detailed analysis and sometimes legal advice is undertaken when a public authority is defending its decision on appeal whereas initial decisions and internal reviews might not get the same level of scrutiny.

If, in the course of investigation, my investigators identify any new material issue, they put it to the parties and again allow them time in which to consider, and make further submissions on, that new issue.

There is no getting away from the fact that it is difficult, if not impossible, to predict how long it will take to process an AIE appeal.  It would be different if it were sufficient for us to simply invite each party to make a submission at the outset and thereafter make a decision without further engagement.  However, as I have explained, further engagement is often required in order to obtain clarity.  We are guided by the need to observe fair procedures.  In many cases, that requires us to engage with third parties who may be affected by my decision. 

The UK ICO operates, of course, under different national legislation.  That legislation allows the ICO to adopt a more streamlined approach.  They aim to complete appeals in 6 months.  As I understand it, they do not, generally, invite comments or submissions from appellants. 

Those who criticise the time taken by OCEI to close appeal cases while pointing to the UK experience would do well to take account of the different environments in which our Offices operate.  Appeals of ICO decisions, for example, are made to a tribunal and not to the High Court. My understanding is that the FOI and EIR regimes in the UK operate together so that if a request does not appear to relate to environmental information it is simply dealt with under FOI by the Information Commissioner.  Thus, much of the questioning that I spoke about earlier as to whether the various definitions apply, can, it seems, be avoided.  

Having said that, we are not complacent about delay and we are anxious to close cases as soon as possible.  It was with timeliness in mind that I successfully sought additional investigator staff.  In 2017 we reduced the average time for closing appeals by 17%. We are reviewing our procedures and trying to streamline how we process cases to make the most efficient use of the investigators’ time.  We will continue our efforts to reduce the time taken and we appreciate that the timeliness of obtaining information is especially important for some appellants.

Recently we received some novel appeal cases.  One appeal was against an AIE decision made by the Office of the Ombudsman.  Since I am the Ombudsman that presented an obvious difficulty.  As it happened, I had absolutely no involvement in or knowledge of the Ombudsman’s Office’s decisions.  The appellant accepted this and indicated his willingness for my Office (OCEI that is) to process the appeal in the same way as any other case.  That case is still live and I expect to make a decision on it in the near future.  We also recently received our first third party appeals.  As you know, AIE appeals are made by those who are dissatisfied with decisions made by public authorities on their requests.   The AIE Regulations also provide for appeals to be made against the decisions of public authorities to release information on foot of AIE requests.  The Regulations require that, to be eligible to appeal, 3rd parties “would be incriminated by disclosure”. The word “incriminated” is unhelpful to say the least.  The two 3rd party appeals that we recently received both challenge the decision by the same public authority to release information that they had provided to it.  Work on these cases is ongoing.

Court appeals are another challenge that we face.   I recognise, of course, that people are entitled to take such appeals.  It is very important that anyone dissatisfied with my decisions can appeal to the courts on a point of law.  Irish court judgments can be a very welcome source of guidance for OCEI, whether they agree with or set aside my decisions.   What I care about most, when a judgment is delivered on an appeal against one of my decisions, is that my Office is not found to have acted unfairly. If I am found to have erred on a substantive point of law, I am happy to learn from that finding.

The main challenge posed by court appeals, for my Office, lies in the resources they consume.  They divert some of my staff resources away from processing AIE appeals.  They also eat into my budget, or, to be more precise, into the budget of the Office of the Information Commissioner.  Currently we are dealing with three live court appeals: one is Friends of the Irish Environment Ltd v Commissioner for Environmental Information which concerns the status of the Courts Service in holding the records of concluded court cases. Another High Court case is Right to Know and the Commissioner for Environmental Information and the Department of Transport which involves the content of particular records originating in lobbying by IBEC.

The third is an appeal to the Court of Appeal by Jim and Mary Redmond against a High Court ruling which upheld one of my decisions.  That case involves the question of whether information on the sale of land was environmental information in the particular circumstances.

Looking to the future, I would like to see all public authorities properly resourcing their AIE functions and making sure that they give notice of AIE decisions within the timescale set out in the Regulations. 

As for those who make AIE requests, I would to see like to see more of them helping public authorities to help them.  Many already do.  I would like to see all requesters wording their requests in a way which states, as specifically as possible, the environmental information that they seek.   AIE is about access to environmental information.  It is not a mechanism for providing access to “all records”.  “Fishing” requests, in particular, should be avoided.   In some cases, such requests may be found to be manifestly unreasonable due to the volume or range of information sought.

For OCEI, I hope that we can continue to build on the significant progress that we have made in recent years, and that we can continue to reflect, to learn, and to strive to provide a better service to our customers.  We hope that court judgements that are likely to come our way next year will provide us with further guidance.  We also look forward to what we might learn from the ACCC when it makes its findings on complaints against Ireland.

I am pleased to note that the Department of Communications, Climate Action and Environment has announced its intention to revise the AIE Regulations next year.  We look forward in feeding into that process.  Issues that we brought to the Department’s attention over the years and would like to be considered include: 

  • An express power of delegation of decision making to senior investigators.
  • Clarification of the timescale for the making of new decisions after remittal to public authorities.
  • An express power to take copies of information from public authorities in order to be able to examine such records for environmental information. Currently, I have the power to examine and take copies of environmental information only. 
  • Clarity on the burden of proof as regards refusals by public authorities
  • Consideration of the possibility of aligning the AIE and FOI regimes, perhaps following the example of the UK. 

To conclude, OCEI has an important but tightly focussed mission.  While we have made significant progress in recent years, particularly in terms resourcing our work, we continue to face ongoing challenges.  Crucially, to do our work efficiently we need to enjoy the trust and cooperation of public authorities and appellants. 

I am conscious that, all of us who are involved in AIE requests and appeals, in any capacity, need to remain mindful of what this is all about.  It is about furthering the aim of the Convention, which is to guarantee the rights of: access to information; public participation in decision-making; and access to justice in environmental matters, in order to contribute to the protection of the right of every person to live in an environment adequate to their health and well-being.

Thank you for listening. I hope you found that of interest.