Annual Report of the Information Commissioner 2016

Part II – Commissioner for Environmental Information

Table of Contents

Introduction

My role as Commissioner for Environmental Information is to review decisions of public authorities on appeal by applicants who are not satisfied with outcomes of requests made under the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations). In 2016, the Office of the Commissioner for Environmental Information (OCEI) processed more cases than ever before, while responding to a recent upsurge in appeals under the AIE Regulations.

The AIE Regulations transpose Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information. Directive 2003/4/ EC implements the first pillar of the 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 right of access to information under the AIE Regulations applies to “environmental information” held by or for a “public authority”. These two terms have specific meanings defined by article 3(1) of the AIE Regulations. My decisions on appeals are final and binding on the affected parties, unless a further appeal is made to the High Court on a point of law within two months of the decision concerned.

The OCEI is legally separate from the Office of Information Commissioner (OIC); however article 12(10) of the AIE Regulations provides that the Commissioner for Environmental Information shall be assisted by the staff of the Office of the Information Commissioner and by such other resources as may be available to that Office.

For further information on the operation of the AIE regime in Ireland, please visit my website at www.ocei.ie, which includes links to the previous Annual Reports of this Office, the OCEI Procedures Manual, the website of the Department of Communications, Climate Action and the Environment, and Directive 2003/4/EC.

Appeals and enquiries in 2016

At the start of 2016, the OCEI had 27 appeals on hand; 22 from 2015, four from 2014 and one from 2013. In 2016, the OCEI received 52 new appeals (equivalent to the combined number of appeals received in 2014 and 2015). The OCEI closed 40 cases in 2016: I made 27 formal decisions, five appeals were invalid, six cases were withdrawn, and two cases were settled.

At the end of 2016, the OCEI had 39 valid appeals on hand – 36 received in 2016, and three from 2015. At the time of writing, the outstanding 2015 cases are being progressed by Investigators. My staff recorded 27 general enquiries about the AIE Regulations in 2016. In 2016, my Office processed three AIE requests, and one of these decisions was the subject of an internal review.

Deemed refusals in 2016

The AIE Regulations include fixed time limits for decisions and internal review decisions by public authorities on AIE requests. A request is deemed to be refused when the public authority fails to issue a decision within the relevant time limit specified in the AIE Regulations (usually one month).

In 2016, eight public authorities failed to make first instance decisions on AIE requests within the time specified by the AIE Regulations. The public authorities were: the Commission for Energy Regulation; the Department of Agriculture, Food and the Marine; Dublin City Council; the Electricity Supply Board; the Environmental Protection Agency; Gas Networks Ireland; the Health Service Executive; and the Industrial Development Board.

In 2016, seven public authorities failed to make internal review decisions within the time specified by the AIE Regulations. The public authorities were: Coillte; the Courts Service; the Department of Agriculture, Food and the Marine; Eirgrid; Gas Networks Ireland; the Health Service Executive; and Transport Infrastructure Ireland.

Powers under article 12(6) of the AIE Regulations

Article 12(6) of the AIE Regulations provides that in the course of carrying out a review on appeal I may require a public authority to make environmental information available to me, examine and take copies of environmental information held by a public authority, and enter any premises occupied by a public authority so as to obtain environmental information. I am pleased to report that I had no need to apply these powers in 2016.

2016 Court Proceedings

Redmond & Anor -v- Commissioner for Environmental Information 2016/27 JR

In my decision in the case of Mr Jim Redmond and Coillte Teoranta (CEI/14/0011) I found that certain information on a transfer of land did not fall within the scope of the AIE Regulations. This decision is the subject of an ongoing judicial review in the High Court, and is listed for hearing on 3 October 2017.

Minch -v- Commissioner for Environmental Information [2016] IEHC 91

In the case of Mr. Stephen Minch and the Department of Communications, Energy and Natural Resources (CEI/13/0006), I found that an economic report entitled “Analysis of options for potential State intervention in the roll out of next-generation broadband” did not, of itself, contain environmental information. I also considered whether this report contained analyses or assumptions used in the framework of a measure likely to affect the environment (the National Broadband Plan in this case). I considered that the link between the National Broadband Plan and any effect on the environment was too remote. I therefore found that the Department was justified in refusing to provide access to the report.

Mr Minch appealed my decision to the High Court. In a judgment delivered on 16 February 2016, the High Court applied the Supreme Court judgment in NAMA v Commissioner for Environmental Information [2013] IEHC 86 in adopting a purposive interpretation of the AIE Regulations. The Court held that “analyses and assumptions used within the framework” of a measure included information of a type which was “capable of informing” a decision-maker. The Court held that information “used within the framework of a measure” is not limited to information which was available at the time a particular report was written. The Court found that the remoteness test applied in my original decision was incorrect, as it was too narrow.

In particular, the Court held that the remoteness test applied did not take into account measures, programmes, or policies which were likely to affect the environment. The Court indicated that the matter should be remitted to my Office for a new decision.

I have appealed from certain parts of this judgment to the Court of Appeal, and the matter is listed for hearing on 16 June 2017.

Issues arising in 2016

Increased number of appeals made to the OCEI

It has been the experience of the OCEI that AIE appeals are often more complex and resource-intensive than FOI appeals. In recent years, appeals to my Office have been subject to delays due to a lack of available resources, and a significant backlog of appeals developed. To address this problem, I made a successful budget submission in 2014 to the Department of Public Expenditure and Reform seeking additional staff to meet the operational needs of the OCEI. Following an open recruitment process, two Investigators were appointed in June 2015 to work specifically on OCEI appeals.

The expanded staffing of my Office has facilitated a marked increase in the number of appeals processed on an annual basis. In 2016, I made 27 formal decisions on appeals (more than the four previous years combined). However, despite this progress, the backlog of cases awaiting investigation increased throughout 2016.

AIE Appeals received 2012 - 2016

It is now clear that since 2014 there has been an unprecedented surge in the number of AIE requests made to Irish public authorities. According to statistics available on the website of the Department of Housing, Planning, Community and Local Government, 374 AIE requests were made to Irish public authorities in 2013. By 2015, this number had increased to 658 AIE requests. While I welcome greater public awareness of the right of access to environmental information, this two-fold increase in requests for environmental information has had a corresponding effect on the number of appeals to my Office, which has increased by 280% since 2014.

As a result of this greatly increased level of demand there is now a clear shortfall in OCEI capacity to process appeals. In particular, substantial delays arise between acceptance of appeals and the availability of an OCEI Investigator. To address this, I have commenced recruitment of additional staff to ensure that I can carry out my statutory functions effectively.

Engagement with the Department of Communications, Climate Action and Environment

In October 2016, the Senior Investigator in my Office participated in an AIE Advisory Group organised by the Department of Communications, Climate Action and Environment. This group included external stakeholders and non-governmental organisations and focussed on potential improvements and reforms of national law on access to environmental information.

In October the Department also ran an AIE training event for public authority staff. An Investigator in my Office made a presentation on OCEI appeal decisions and drew attention to online resources. As in recent years, the training provided clear and useful information to public authority staff on the AIE Regulations, and I would like to thank the Department for its continued work in this regard.

I look forward to further engagement with the Department in 2017 on the publication of revised guidelines on access to information on the environment, and on other issues of mutual concern.

Communication to the Aarhus Convention Compliance Committee (ACCC/C/2016/141)

In August 2016, Right to Know CLG (an Irish advocacy group concerned with public access to information) made a communication to the Aarhus Convention Compliance Committee (ACCC/C/2016/141) in relation to aspects of Ireland’s compliance with the Convention. This communication included references to delays in processing AIE appeals by the OCEI, as well as commentary on OCEI procedures. The Department of Communications, Climate Action and Environment is responsible for submitting statements to the Compliance Committee in response to this communication. My Office provided the Department with information on the work of the OCEI to inform the Department’s statements, and I will continue to monitor this process as appropriate.

2016 Judgments of the Court of Justice of the European Union

Article 10(1) of the AIE Regulations prevents the application of certain exceptions to disclosure where a request “relates to information on emissions into the environment.”

In its judgments in the cases of Bayer CropScience SA-NV, Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden (Case C-442/14) and Commission v Stichting Greenpeace Nederland and PAN Europe (Case C-673/13 P), the Court of Justice of the European Union clarified the meaning of “emissions into the environment” in the context of plant protection products and biocides. The Court held that the term “emissions into the environment” covers the actual or foreseeable release of substances under normal or realistic conditions of use. The Court did not limit the concept of emissions to those of industrial installations.

The Court held that information on “emissions into the environment” includes information regarding the nature, composition, quantity, date and place of the emissions, but also includes information enabling the public to check whether an official assessment of actual or foreseeable emissions is correct, data concerning the medium to long-term consequences of those emissions on the environment, and information on residues of emissions and drift of emissions.

In Case C-673/13 P, the Court set aside an earlier finding of the General Court that the scope of information relating to emissions included information linked in a “sufficiently direct manner” to such emissions. The CJEU held instead that information which relates to emissions must actually concern or be relevant to such emissions, and does not include information having any link at all, direct or indirect, to emissions into the environment.

Significant decisions in 2016

Summary of decision outcomes in 2016

In 2016 I made 27 formal decisions on appeals under the AIE Regulations. In 19 of these cases I found that a refusal of a request was (to some extent) not justified. In 12 of the 27 decisions I required the public authority to provide access to some or all of the environmental information requested. In 9 cases, I stated that the public authority should make a new decision on the request. In 8 appeals I found that refusal of the appellants’ requests was justified in full (although not always for the same reasons provided by the public authority). All of my decisions in 2016 are published on the OCEI website.

The following are notable examples from 2016 of decisions where I required public authorities to make environmental information available to applicants.

In Galway Bay Against Salmon Cages and the Marine Institute (CEI/15/0013) I considered a request for access to information on pancreas disease in farmed salmon. I found that the commercial interests served by refusal of the appellant’s request were outweighed by the public interest in transparent regulation of the fish farming industry. I required the Marine Institute to provide access to the information requested.

In Francis Clauson and ESB Networks Limited (CEI/15/0029) I considered a request for access to information on the power output of an electricity generation facility. This information was held by ESB Networks, the statutory authority with responsibility for the national power distribution system. I found that, although disclosure of the information would adversely affect commercial and industrial confidentiality, this interest was outweighed by the strong public interest in the transparent operation of renewable energy policy and related price support mechanisms.

In Fand Cooney and ESB Networks Limited (CEI/15/0002) I reviewed a refusal by ESB Networks to provide access to information on a power transmission project in Portlaoise. I reviewed an “investment appraisal” document on the project, and found that it contained environmental information (as defined by the AIE Regulations). I found that ESB Networks was not obliged to disclose information on the cost of the project, as this would adversely affect commercial confidentiality. Notwithstanding this decision, I required ESB Networks to make other parts of the appraisal document available to the appellant, where commercial confidentiality did not apply.

In Damien McCallig and the Department of Communications, Climate Action and Environment (CEI/15/0032), I reviewed the Department’s refusal to provide access to modelling data used to inform the development of wind energy policy. The Department contended that this information related to an ongoing deliberative process. It submitted that disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities for the purposes of article 8(a)(iv). I considered that the information at issue did not, of itself, disclose the outcome of a decision. I therefore found that release was not likely to prejudice a decision-making process. I also noted the strong public interest in providing members of the public an opportunity to make well informed submissions on environmental decisions.

Manifestly unreasonable requests, and requests formulated in too general a manner

A number of appeals in 2016 concerned requests which were formulated in too general a manner and requests which were manifestly unreasonable having regard to the volume and range of information sought. Articles 9(2)(a) and (b) of the AIE Regulations provide that public authorities may refuse such requests. Where appropriate, public authorities should consider these grounds for refusal as preliminary matters when processing AIE requests.

Requests formulated in too general a manner

Under article 7(8) of the AIE Regulations, where a request is made in too general a manner, the public authority is obliged to invite the applicant to make a more specific request as soon as possible, and must offer assistance to the applicant in the preparation of such a request. Article 9(2)(b) provides that a public authority may refuse to make environmental information available where a request remains formulated in too general a manner, taking into account article 7(8).

In the case of Councillor Thomas Cullen and the Department of Environment, Community and Local Government (CEI/15/0018), I noted that the AIE Regulations do not oblige public authorities to process overly general requests for information. Requests should be reasonably limited with regard to subject matter where possible. In this case, the appellant’s AIE request sought access to “All information relating to documentation submitted to your department by [a named third party]. All letters sent and received, E mails external & internal, all memos, minutes and dates of meetings, all records and notes of phone conversations and all such information that is in your possession relating to [the named third party’s] correspondence with your Minister and Department.” In response, the Department invited the appellant to make a more specific request, and suggested that he should include details of relevant subject matters and time periods. The appellant declined to make a more specific request. On appeal, I subsequently found that the Department was justified in refusing the request under article 9(2)(b).

Manifestly unreasonable requests for environmental information

Article 9(2)(a) of the AIE Regulations provides that a request may be refused if it is manifestly unreasonable in terms of the volume or range of information sought. This ground for refusal must be interpreted in light of article 7(2)(b), which provides that a public authority may extend the time for making a decision by up to one month if the volume or complexity of the request requires this. Where a public authority cannot reasonably process a request within the extended two month timeframe it may be appropriate to consider refusal on the basis that the request is manifestly unreasonable. As with all exceptions to disclosure under articles 8 and 9, this ground for refusal is subject to a public interest test under article 10(3).

In 2016, a number of appeals to my Office were determined on the basis of this ground for refusal. For example, in the case of Ms Mary Horan, Ms Margaret Mulligan and Mr Frank Mulligan and ESB Networks (CEI/14/0009), the appellants sought access to “copies of: all correspondence/ documentation/pieces of paper generated, and all information known by you, that in any and all ways relate to the entire cost of The Srananagh Station Project (‘the Project’) . . . including but not limited to original costings for project, compensation to all affected landowners, cost of all construction works, and any and all costs associated with the project, including legal fees and consultation fees”. ESB Networks contended that this request was manifestly unreasonable, as it sought to access information on hundreds of discrete transactions which took place over many years, as well as the cost of related litigation. Given the all-encompassing wording of the appellants’ request, and having had regard to the volume and range of information requested, I found that refusal was justified on the basis that the request was manifestly unreasonable with regard to volume and range.

While I appreciate that an applicant may not know the extent of information held by or for a public authority, making a universal AIE request may be counterproductive and can lead to refusal where an unmanageable amount of information falls within the scope of the request. I would strongly encourage applicants and public authorities to engage on the scope of requests at the outset to avoid the need for refusal under article 9(2)(a).

Decisions on the definition of environmental information

Article 3(1) of the AIE Regulations defines “environmental information” for the purposes of the AIE Regulations. The definition includes any information on six broad subject matters pertaining to the environment, including any information on measures or activities affecting or likely to affect the elements of the environment. In many cases before me, public authorities refuse AIE requests on the basis that the information sought falls outside the definition of environmental information. I wish to emphasise that information need not describe the elements of the environment directly in order to fall within the AIE Regulations; therefore, public authorities should have regard to the full extent of the definition when considering AIE requests. I anticipate that the Court of Appeal will provide further clarity on the definition of environmental information in 2017, following the hearing of the Minch case on appeal.

In 2016, I set out my view on the scope of the definition of environmental information in the case of Ken Foxe and the Department of Defence (CEI/15/0007). This appeal related to information on official travel using State owned aircraft. Bearing in mind the aims of the Aarhus Convention, I concluded that information which describes integral aspects of an activity affecting the environment can be said to have a sufficient connection to environmental factors for the purposes of the definition, even where such information does not of itself directly reflect the state of the elements of the environment. In the same decision, I found that incidental information which does not define the conduct of an activity under consideration (such as lists of passenger names in this case) falls outside the scope of the AIE definition.

In my decision in the case of Ms Mary Horan, Ms Margaret Mulligan and Mr Frank Mulligan and ESB Networks (CEI/14/0009) I found that information on the entire cost of a major energy infrastructure development project was integral information on that project, disclosure of which would facilitate accountability of and transparency in a measure affecting the environment. I therefore found that the requested information fell within the definition of “environmental information”.

Conversely, in the case of Phillip Cantwell and Meath County Council (CEI/15/0021) I found that fragmentary information on project costs (as set out in individual invoices, requisitions for cheques and descriptions of interim payments) did not fall within the definition, as this information was not integral to the measure under consideration for the purposes of the AIE Regulations.

Transfer of AIE Requests

Under article 7(5) of the AIE Regulations, where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority must inform the applicant of this fact as soon as possible.

Under article 7(6), where no relevant information is held by or for a public authority, but it is aware that the information requested is held by another public authority, it must transfer the request to the other public authority, or inform the applicant of the public authority to whom it believes the request should be directed. It is important to note that these two provisions are linked – it is only possible to transfer a request where the information sought is not held.

In the case of Mr Thomas Freeman and Electricity Supply Board (CEI/16/0010), an AIE request was made to the Electricity Supply Board, a statutory corporation established under the Electricity (Supply) Act 1927. However, the decision on this request issued from a separate public authority: a ring-fenced subsidiary of the ESB called ESB Networks Limited. In its submission to my Office, the ESB explained that it operated a shared service for processing AIE requests across all its subsidiary companies, by which AIE requests are forwarded to a central coordinator who then directs the request to whichever ESB subsidiary is likely to hold the information.

In the circumstances, I found that ESB was not justified in its purported transfer of the appellant’s request. Members of the public have discretion to direct an AIE request to a public authority of their own choosing, and the obligation to reply to an AIE request falls on the public authority selected by the applicant. A public authority may not transfer a request to a different public authority, except as provided in articles 7(5) and (6).

In my decision, I acknowledged the complexity of the regulatory and contractual arrangements between the bodies which make up the ESB Group; however, I nevertheless consider that each public authority within the group must individually comply with the provisions of the AIE Regulations.




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