Decision
Ms. X and Kildare County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93401-X4C2M5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93401-X4C2M5
Published on
Whether the Council was entitled to refuse access to the information requested on the basis of article 9(1)(b) of the AIE Regulations
1. On 25 July 2019 the appellant, acting on behalf of the owner and lessee/operator of a property in Co Kildare (the lessee), requested access to all environmental information held by Kildare County Council in respect of that property. In particular, the appellant sought:
(a) All data and laboratory analysis relating to groundwater quality at the site;
(b) All data and laboratory analysis relating to surface water quality at the site;
(c) All data and laboratory analysis relating to soil quality at the site;
(d) All reports prepared by third parties on behalf of the Council;
(e) All site logs, records of meetings and data resulting from site inspections and investigations;
(f) Any warning letters or enforcement notices issued in relation to the site under the provisions of the Waste Management Act 1995 or any other relevant environmental legislation;
(g) Any correspondence to statutory bodies and stakeholders relating to the status of the environment at the site;
(h) Any reports relating to a potential negative impact on the receiving environment; and
(i) Any environmental reports prepared by the Council for other government agencies.
2. On 23 August 2019, the Council responded to the appellant with a decision part-granting the request. The Council provided the appellant with information held by it in relation to categories (f), (g) and (i) above but refused to provide access to information held in respect of the remaining categories. The Council relied on article 9(1)(b) of the AIE Regulations as grounds for refusal. Article 9(1)(b) provides that a public authority may refuse to make available environmental information where the disclosure of that information would adversely affect the course of justice. The decision noted that the information refused was to be used as part of legal proceedings that might be brought and that some of the information had been prepared solely for the purpose of those proceedings. No further detail was provided.
3. The appellant sought an internal review of the Council’s decision on 19 September 2019. The request for internal review queried whether the decision to refuse would “stand up to a public interest test”. It noted that the lessee had not received notice of any criminal proceedings and submitted that if proceedings were issued, the information requested would need to be issued to all parties to allow preparation of a defence. The request also noted that the information requested had been obtained through survey work, investigations and monitoring carried out on-site by the Council, which had been facilitated by the lessee. It submitted that the lessee had been informed by Council officials carrying out the relevant investigations that the results of the tests would be made available to it and it was therefore reasonable to expect that the AIE request would be fully granted.
4. The Council issued a decision on the internal review request on 16 October 2019, which affirmed the original decision. It did not provide any further information or reasoning other than to note that the public interest test required “balancing the potentially negative impact of releasing the information to the persons who carried out the depositing of waste on the lands against the general public interest of releasing information” and that the Council was “currently engaged in active enforcement cases in relation to the site lands”.
5. The appellant appealed to my Office on 13 November 2019.
6. It was unclear from the Schedule of Records provided by the Council to my Office at the outset of the appeal, which records within the scope of the appellant’s request had been provided to the appellant and which had been refused. My Investigator asked the Council to clarify this point in her request for submissions of 22 May 2020. The Council’s initial submissions, of 3 July 2020, did not provide such clarity. Those submissions referred to “individual items of withheld information” which the Council submitted were subject to both legal advice and litigation privilege. The submissions also noted that the Council had not addressed issues relating to an Environmental Risk Assessment of the site (referred to in the decision as the “ERA Report”) on the basis that the Council was not clear as to whether disclosure of the ERA Report was to be determined as part of the appeal. This Office clarified that the ERA Report was within the scope of the appeal on 4 August 2020 and sought further clarity from the Council on 7 and 9 September 2020 as to the precise information which had been withheld. The Council subsequently confirmed to my Investigator that the withheld information consisted solely of the ERA Report. However, it did not provide an explanation as to why its submissions of 3 July 2020 made arguments in respect of the “withheld information” while also asserting that those submissions did not address the ERA Report which, according to the Council’s subsequent clarifications, was the only item of withheld information. As such, my decision is concerned with whether any further information, within the scope of the appellant’s request, has been withheld from the appellant.
7. The Council has refused access to the ERA Report on the basis of the grounds for refusal set out at article 9(1)(b) of the Regulations which provides for the withholding of information where disclosure would adversely affect the course of justice. When asked to provide further information on this point, the Council also submitted that the information is subject to legal privilege. As such, my review in this case is concerned with whether the Council was justified in refusing access to the ERA Report on the basis that the information is legally privileged and/or that disclosure would adversely affect the course of justice more generally.
8. The appellant’s appeal form also took issue with the internal review process on the basis that the internal review had been carried out by the original decision maker’s supervisor and line manager. However, this does not appear to me to be a breach of the procedure provided for in article 11(2) of the Regulations which provides that the internal review should be conducted by “a person unconnected with the original decision whose rank is the same as, or higher than, that of the original decision-maker”. It is accepted that the internal reviewer occupied a higher rank than the original decision-maker and it would not be unusual for a decision-maker’s line manager to act as an internal reviewer. In addition, there is nothing before me to suggest that the internal reviewer was improperly connected to the making of the original decision. As such I do not consider that this issue merits further investigation and my decision is limited to the matters outlined at paragraphs 6 and 7 above.
9. I also wish to express my regret that there has been a considerable delay in the resolution of this appeal which was due to a combination of factors. I consider that many of the delays occasioned could have been avoided had the Council been more responsive to requests made by this Office but I must also accept that some were occasioned by factors relating to my Office.
10. The appellant’s submissions, both to the Council and to this Office, can be summarised as follows:
(i) The appellant submitted that much of the information requested was obtained from site visits, investigation and monitoring which occurred with the cooperation of the owner and operator of the site in question. The appellant submitted that the Council stated, during the course of those inspections and visits, that information obtained would be shared with the lessee. The appellant also submitted that the results of site investigations carried out by the lessee were made available to the Council. They submitted, on that basis, that it was reasonable to expect that the information sought in their AIE request would be released.
(ii) The appellant refuted that the public interest test in this case would warrant the refusal of the information requested. The appellant accepted that they were not entitled to information or correspondence between the Council and its legal advisors however they submitted that no notice of legal proceedings had been received by the lessee or the owner of the site at the date of the submissions (i.e. as of 23 September 2020) and that if proceedings were issued the Council would be required, in any event, to provide the information to the parties to those proceedings.
11. The submissions provided by the Council to this Office can be summarised as follows:
(i) The Council submitted that what it considered to be illegal dumping had taken place on the site in respect of which the information was sought. It submitted that a large volume of waste material had been brought on to the site from a number of sources and potential operators. The Council submitted that the withheld information represented part of an ongoing investigative process as part of which it was continuing to monitor the site for environmental pollution. It sought to rely on article 9(1)(b) and made specific reference to legal advice and litigation privilege as grounds for refusal of the withheld information.
(ii) The Council’s submissions noted that there were a number of, what it described as, “threatened or contemplated” proceedings to which the withheld information might relate and in respect of which the Council had obtained legal advice. The Council also provided documents to this Office relating to those proceedings. The proceedings were as follows
A. A prosecution under sections 32(1), 39 and 55 of the Waste Management Acts 1996 to 2011.
The Council provided no further detail on these proceedings in its submissions however I understand from documents provided to this Office in connection with the proceedings, that while such proceedings were instituted against the owner of the site on 14 March 2017, they were subsequently withdrawn on 13 February 2018.
B. Threatened injunction proceedings under section 160 of the Planning and Development Acts 2000 to 2018.
The documents provided by the Council to my Office in connection with these proceedings include a recommendation on the part of Council officials that injunction proceedings under section 160 be initiated to restrain what the Council considered to be unauthorised development or breaches of planning permissions granted in connection with the site. The documents include a recommendation that a barrister be briefed on the matter as well as correspondence from the Council’s solicitors to the owner and lessee of the site advising them of the Council’s intention to initiate proceedings seeking injunctive relief. However, the recommendation and correspondence date from August 2017 and it does not appear that any proceedings were in fact instituted. Indeed, it is worth noting that the documents provide to my Office by the Council do not include pleadings, either in completed or draft form.
C. Contemplated proceedings under sections 57 and 58 of the Waste Management Acts 1996 to 2011.
The information provided to this Office with respect to these contemplated proceedings is minimal and does not suggest that preparation of those proceedings was at an advanced stage.
D. An application to the District Court for a warrant under the Waste Management Acts 1996 to 2011.
The Council did not provide further detail on this in its submissions but I understand from the documents provided to this Office that a warrant under the Waste Management Acts was granted by the District Court on 27 July 2018 having been sought by the Council in order to facilitate the investigations by Enviroguide carried out in connection with the ERA Report.
E. Proceedings brought against the Council by the lessee of the site.
It appears from the documents provided by the Council that this encompasses two sets of proceedings: (i) 2018/6040P alleging, inter alia, trespass and unlawful interference with the property and economic rights of the lessee and seeking an injunction to restrain such alleged trespass and interference; and (ii) 2018/7281P which alleged that personnel acting for or on behalf of the Council had engaged in activities on the site which contravened health and safety requirements and resulted in pollution of or damage to the site and sought further injunctions restraining the Council’s access to the site and requiring it to remedy damage which the plaintiff contended had been caused by previous investigations. The documents provided by the Council demonstrate that an interim injunction was granted on 10 August 2018. It appears from the High Court Search function on the Courts website that a hearing took place on 20 August 2018 in which both sets of proceedings brought by the lessee against the Council were consolidated and the interlocutory reliefs sought by the lessee were refused. No written judgment appears to have been issued and no further activity in those proceedings is evident from the High Court Search. The Council did not provide further update on the status of these proceedings despite being requested to do so.
F. Prosecution under section 14 of the Waste Management Acts 1996 to 2011.
I understand from the documents provided to this Office in connection with the proceedings that this prosecution was issued against the lessee of the site and a named individual and involved an allegation that such named individual had obstructed or impeded authorised persons in the exercise of their powers under the Waste Management Acts contrary to section 14(6)(b) of same. It is not clear from the Council’s submissions nor is it evident from the documents provided by it, whether such proceedings were pursued or finalised.
(iii) The Council submitted that the ERA Report was prepared as part of potential enforcement action under the Waste Management Acts 1996, specifically legal proceedings being contemplated under sections 57 and 58 of the 1996 Act (and referred to at C above). This included potential proceedings against the owner and lessee of the site in question. It explained that that the ERA represented part of its an ongoing investigative process which involved the continued monitoring of the site for environmental pollution. The Council explained that while it was satisfied environmental pollution had occurred at the site, there remained questions as to the extent of the pollution and that the purpose of the continued monitoring was to determine the level of pollution which had occurred. The Council further submitted that the level of pollution was one of the most important factors for it when deciding whether to initiate proceedings under the Waste Management Acts.
(iv) The Council also submitted that it was anticipated that the Report might be used as part of its defence in the proceedings referred to at E above as well as in the threatened injunction proceedings referred to at B.
(v) The Council was asked by the initial Investigator to clarify the status of proceedings under the sections 57 and 58 of Waste Management Acts. The Council advised my Investigator, on 5 November 2020, that proceedings had yet to be commenced but that the Council continued to monitor pollution on the site for the purposes of considering whether legal proceedings were necessary. The Council were asked to provide an update on the status of any proceedings by my Investigator on 27 July 2021 however no response was received, despite the Council being facilitated with a number of extensions of time to provide one.
(vi) The Council submitted that the ERA Report represented a “snap shot in time, depicting a state of affairs that may be viewed very differently in light of ongoing investigations and monitoring results”. It noted that it might be framed in the context of additional reports and surveys if used in proceedings in the future and that release of the Report in its current and potentially incomplete format “may portray a version of events very different to the version of events [the Council] may wish to portray in proceedings”. It submitted that this “may serve to confuse the issue before the Courts by presenting alternative viewpoints which the opposition could contend represented an official viewpoint of [the Council]”. The Council also submitted that it might be advised that the withheld information should not form part of any future proceedings and that “release of the withheld information could then result in that information forming part of the proceedings by being introduced by one of the other parties in the proceedings, thereby prejudicing and interfering with [the Council’s] rights”. The Council did not specify the proceedings to which it was referring, nor did it provide any further detail as to the rights to which it referred or how such rights might be prejudiced.
(vii) In response to a request from my Office to set out its views on the public interest balancing test required under articles 10(3) and 10(4) of the Regulations, the Council submitted that it was not aware of any public interest factors in favour of disclosure of the withheld information and that it was difficult to contemplate what benefit to the environment would be gained by releasing the information to the appellant in circumstances where, the Council contended, the appellant was acting on behalf of a lessee who had imported large volumes of material, including waste, on to the site in question. It submitted that the importation of material on to the site in question meant that the site would need to be monitored for environmental pollution for many years to come and it was difficult to contemplate what public interest there could be in providing the appellant with the withheld information. It noted that “bearing in mind [the Council’s] experience, the suspicion is that the release of the information may have a contrary effect”. No further detail was provided as to the contrary effect in question.
12. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Council. I have also examined the contents of the information at issue. In addition, I have 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); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
• Relevant case law including University College Cork v the Electricity Supply Board [2014] IEHC 135 which relates to the application of litigation privilege, and the decision of the Court of Justice of the European Union in C-619/19 Land Baden-Württemberg v DR which provides guidance on the application of exceptions contained in the Regulations.
13. As noted above, the Council’s submissions of 3 July 2020 specifically noted that the ERA Report was not addressed therein but nonetheless referred to “individual items of withheld information” which, it submitted, were subject to both legal advice and litigation privilege. This might suggest that the “withheld information” referred to in the Council’s submissions of 3 July 2020 encompassed more than the ERA Report. On the other hand, it might simply be confusing drafting on the author’s part. However, despite being given the opportunity to clarify the situation on a number of occasions the Council has provided no response to my Office on this point. I consider that any continued attempts on the part of this Office to seek clarification from the Council at this stage would cause further delays to the resolution of this appeal. As there remains some uncertainty as to why the Council’s submissions of 3 July 2020 referred to “individual items of withheld information”, this decision will proceed on the basis that the only item of “withheld information” was the ERA Report. I will also remit the matter back to the Council for the sole purpose of ascertaining that no further information within the scope of the request has been withheld.
14. Accordingly, as outlined above, the remaining issue in this appeal is whether the Council was justified in refusing access to the ERA Report.
Do the Regulations provide grounds for refusal of the ERA Report?
15. The Council has argued that the ERA Report is subject to legal advice privilege and litigation privilege and that its disclosure would adversely impact the course of justice such that the exception under article 9(1)(b) applies. As such, it is necessary for me to consider, in the first instance, whether any of the following apply in the circumstances of this appeal such that a prima facie justification for refusal of the ERA Report exists:
(i) Legal advice privilege
(ii) Litigation privilege
(iii) An adverse impact on the course of justice.
If the answer to any of the above questions is yes, I must then go on to consider whether the interest in withholding the information in question outweighs the public interest in its disclosure.
16. Legal advice privilege applies to confidential communications made between a client and their legal adviser for the purpose of obtaining and/or giving legal advice. The ERA Report is an environmental risk assessment of the site to which the request for information relates which was prepared by environmental consultants on behalf of the Council. The ERA Report was not prepared by the Council’s legal advisors and is not legal advice. Therefore, it is not information to which legal advice privilege can attach.
17. Litigation privilege applies to confidential communications, made between a person and a professional legal advisor or with a third party (either directly or through that legal advisor), the dominant purpose of which is the preparation for contemplated or pending litigation.
18. The judgment of Finlay Geoghegan J in University College Cork v the Electricity Supply Board [2014] IEHC 135 provides useful guidance on the history and application of the concept of litigation privilege and summarises the relevant principles as follows (see paragraph 4):
(i) Litigation privilege constitutes a potential restriction and a diminution of a full disclosure, both prior to and during the course of legal proceedings which is desirable for the purpose of ascertaining the truth and rendering justice. As such, it must be constrained. Smurfit Paribas v AAB Export Finance [1990] 1 IR 469 per Finlay CJ at p 477.
(ii) The purpose of litigation privilege is to aid the administration of justice, not to impede it. In general, justice will be best served where there is candour and where all relevant documentary evidence is available. Gallagher v Stanley [1998] 2 IR 267 per O’Flaherty J at p 271.
(iii) The document must have been created when litigation is apprehended or threatened.
(iv) The document must have been created for the dominant purpose of the apprehended or threatened litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation. Gallagher v Stanley [1998] 2 IR 267 at p 274 approving the test propounded by the House of Lords in Waugh v British Railways Board [1980] AC 521.
(v) The dominant purpose of the document is a matter for objective determination by the Court in all the circumstances and does not only depend upon the motivation of the person who caused the document to be created. Gallagher v Stanley and Woori Bank & Hanvit LSP Finance Ltd v KDB Bank Ireland Ltd [2005] IEHC 451.
(vi) The onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to obtain legal advice or enable his solicitor prosecute or defend an action. Woori Bank and Downey v Murray [1988] NI 600.
19. The issue for determination in the UCC case was whether ESB could rely on litigation privilege in relation to documents relating to a 2009 flood which was the subject of litigation between UCC and ESB as well as in relation to documents relating to previous flooding events. Finlay Geoghegan J was not satisfied that documents could be given the benefit of litigation privilege in circumstances where common sense suggested that those documents had been prepared not only for the purposes of anticipated litigation but also in connection with presentations made by ESB to a Joint Oireachtas Committee and as a result of the ESB’s usual practice of carrying out investigations following flooding incidents. The Court concluded that while the apprehended litigation was one of the purposes for which the documents were prepared, the other purposes were at least equal purposes of its preparation and it could not therefore be said that apprehended or threatened litigation was the dominant purpose.
20. I must therefore examine the background to the preparation of the ERA Report as well as the Report itself to determine its purpose or purposes. It is only in the event that I am satisfied that the dominant purpose of the ERA Report was contemplated or pending proceedings, that I can find that litigation privilege attaches to it. As noted by Finlay Geoghegan J in UCC, the onus is on the party asserting privilege to prove, on the balance of probabilities, that the dominant purpose for which the document was brought into existence was to enable that party’s solicitor to prosecute or defend an action (see UCC, paragraph 5).
21. It appears from the information before me that in 2017, the lessee and operator of the site in question began to import materials (i.e. soil and stone) onto the site which had been obtained from sites, including schools and hospitals, on which excavation work had taken place. The site had previously been operated as a quarry and the imported materials were deposited in the former quarry. The lessee classed the materials in question as by-products within the meaning of the European Communities (Waste Directive) Regulations 2011 (the “2011 Regulations”). The lessee’s position is that importation and depositing of the materials onto the site was in lawful compliance with planning conditions applicable to the site which required the restoration of the quarry. The Council disputes this. In July 2017, the Council conducted a site inspection and took the view that the materials being imported onto the site were waste materials rather than by-products. This led to further investigations by the Council and it was in the course of those investigations that the ERA Report was commissioned and prepared.
22. My understanding is that the classification of the materials in question is significant as waste management legislation provides for differing treatment of by-products and waste. Article 27 of the 2011 Regulations requires that an economic operator who classes a product as a by-product must notify the Environmental Protection Agency (EPA) of such classification as well as the reasons for same. The EPA may then decide, in conjunction with the relevant local authority, whether the material in question has been correctly classified. In this case, the lessee and operator of the site submitted a number of notifications to the EPA under article 27. I understand that an article 27 notification was submitted to the EPA in respect of each set of materials received by the operator. The importation of materials onto the site took place pending determinations by the EPA as to the nature of the materials in question. Determinations by the EPA on a number of such notifications were pending at the time of the Council’s site inspections and investigations. In many cases, the EPA, having consulted with the Council in respect of the application, ultimately disagreed with the classification applied. The EPA’s determinations in respect of a number of the lessee’s article 27 notifications were the subject of judicial review proceedings. I understand that the Council was not a party to these proceedings and no details in relation to these proceedings were provided in the Council’s submissions, although there is some reference to them in the documents provided to this Office by the Council. It appears from the High Court search function on the Courts website, that an order of certiorari was granted by the High Court on foot of those judicial review proceedings in October 2018. As such, a live issue between the parties at the time of the Council’s investigations was the appropriate classification of the materials in question.
23. Following its July 2017 inspection, the Council issued a direction to the owner of the site directing the immediate cessation of the importation of waste materials in accordance with section 14(5)(a) of the Waste Management Acts. The Council received a response to its direction, on 10 July 2017, from an entity which appears to have been acting on behalf of the lessee. The response asserted that the material being imported was soil and stone which had been obtained from excavation projects. It also asserted that this material was being imported for the purposes of restoring the site, which had previously been used as a quarry. It submitted that the material in question was by-product not waste and that a notification had been submitted to the EPA in this regard. It therefore disputed the Council’s entitlement to issue a direction under section 14(5)(a) of the Waste Management Acts. In mid-July, a multiagency inspection of the site took place involving personnel from the Council, the Gardaí, the Revenue Commissioners and the Road Safety Authority. It was determined by the Council that hauliers who entered the site in the course of that inspection were not acting in compliance with their waste collection permits as those permits did not allow for the disposal of waste at the site in question. The lessee, on the other hand, disputed that the materials being brought to the site were waste materials, disposal of which would require a permit. Further inspections of the site were carried out by the Council in August 2017, which also concluded that waste continued to be imported onto the site.
24. In correspondence with the EPA dated 23 August 2017, which was released to the appellant as part of their request, the Council set out its view that the regional importance of the groundwater vulnerability at the site meant that the activities in question posed an environmental risk and might lead to adverse environmental and/or human health impacts.
25. In September 2017, a notice was issued to the owner of the site under section 55 of the Waste Management Acts. According to the August 2017 correspondence between the Council and the EPA, a notice under section 55 of the Waste Management Acts had been issued to the site owner in 2016 directing the removal of waste and this notice had not been complied with such that the Council had now referred the matter to its legal department for the purpose of initiating proceedings. My understanding is that these are the proceedings referred to in paragraph 11(ii)A above which were initiated in March 2017 but withdrawn in February 2018, before the commissioning of the ERA Report.
26. The information disclosed to the appellant also included a letter sent to another haulier, in September 2017, which directed immediate cessation of waste disposal at the site in question, failing which, enforcement action would be initiated by the Council. No further information has been provided to this Office in connection with such threatened enforcement action. In October 2017, the Council received notice from the EPA that it had made determinations in respect of certain notifications received by the lessee and had concluded that the materials which were the subject of those notifications should be considered a waste and not a by-product. As outlined above, my understanding is that a number of notifications were made to the EPA under article 27 of the 2011 Regulations at various stages of the Council’s investigation process which sought to classify materials being imported to the site as by-products rather than waste.
27. Further inspections appear to have been carried out in October, November and December 2017 and again the view taken by the Council was that waste materials continued to be imported onto the site without the appropriate permissions. The Council commissioned a geophysical survey of the site in January 2018. A further inspection was also carried out in late January, on the basis of which the Council concluded that waste continued to be imported and estimated that approximately 400,000 to 500,000 tonnes of waste had been imported onto the site since July 2017.
28. The geophysical survey of January 2018 consisted of a non-intrusive survey of the site. It concluded that Type 1 and Type 2 waste was present on the site and recommended more intrusive investigations to further examine the nature and thickness of the possible waste material. The Council then issued a Request for Tender for a Tier 2 and Tier 3 Risk Assessment, the completed version of which issued on 24 April 2019 and is the ERA Report which is the subject of the present appeal. The Request for Tender notes that the successful applicant will be expected to apply the methodologies set out in the EPA’s Code of Practice on “Environmental Risk Assessment for Unregulated Waste Disposal Sites” to “prepare reports” and to “manage and supervise the site investigations”. The Request for Tender notes that the successful tenderer will produce a detailed evidence based report interpreting the analytical results obtained from the exploratory site investigation and sampling. It also lists the objectives of the investigation and sampling which appear technical in nature and include confirmation of the composition, character and extent of the waste as well as the impact on ground and surface water and the exploration and determination of Source, Pathway, Receptor linkages. There is no reference to proceedings or potential proceedings in the Request for Tender. However, the ERA Report itself is marked “Legally privileged and prepared for potential Court proceedings”.
29. The Council have submitted that “while the report may be used for other purposes” the dominant purpose of the ERA Report was “proceedings being contemplated under section 57 and 58 of the Waste Management Acts 1996 to 2011”. However, the Request for Tender suggests a broader purpose i.e. to determine the extent to which waste materials had been imported onto the site and the impact of the presence of any such materials. The Council has also suggested, in its submissions to this Office, that the purpose of the ERA Report was to provide a “snap shot in time” of the pollution status of the site so that the Council could determine whether ongoing monitoring of the site was required and, depending on the level of pollution identified through such monitoring, whether or not the initiation of proceedings was appropriate. As such, I consider that it can be said that the purposes of the Report were (i) to determine the level of waste materials present at the site; (ii) to determine whether further monitoring was necessary; and (iii) to determine whether the initiation of legal proceedings should be considered.
30. The ERA Report is dated 24 April 2019. While I accept that investigations of any nature can take time and that investigations of environmental matters can often prove complex, I note the appellant’s submission that, as of 23 September 2020, neither the owner nor the lessee/operator of the site had been notified of any further proceedings relating to the site in question. On 5 November 2020, the Council confirmed to my Investigator that enforcement proceedings under sections 57 and 58 of the Waste Management Acts had not been initiated and that the Council continued to monitor pollution levels at the site such that the decision to initiate proceedings remained under review. In July 2021, my Investigator wrote to the Council seeking an update as to the status of any proceedings to which the Council contended the withheld information was relevant. Despite multiple requests for an update, no response was received from the Council in this regard. I also note the Council’s submissions to this Office of 3 July 2020 that “it is possible that [the Council] on foot of advice from their legal advisors may decide that the withheld information should not form part of the proceedings”.
31. Having regard to the information before me, which includes the EPA Report itself as well as information and submissions provided by the Council, I am not satisfied that it can be said, in the circumstances of this case, that the dominant purpose of the ERA Report was apprehended or threatened litigation. It may be said that this was one purpose of the Report, but it was not in my view, its dominant purpose. As such, I do not consider litigation privilege to provide grounds for refusal of the ERA Report.
Adverse impact on the course of justice more generally
32. As outlined above, article 9(1)(b) provides that a public authority may withhold information where the disclosure of that information “would adversely affect … the course of justice (including criminal inquiries and disciplinary inquiries)”. It is clear from the wording of article 9(1)(b) that it encompasses a broader range of scenarios than those to which legal privilege applies. It is therefore possible that information which is not subject to legal privilege might still fall within the exception provided for in article 9(1)(b).
33. However, the wording of article 9(1)(b) also makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. While the AIE Regulations do not explicitly provide that the burden of proof rests with the public authority in relation to justifying a refusal to make information available, I consider that the scheme of the Regulations, and of Directive 2003/4/EC upon which the Regulations are based, makes it clear that there is a presumption in favour of release of environmental information.
34. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden-Württemberg v DR. Although that decision relates to the exception contained in article 9(2)(d) of the Regulations, it contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment (emphasis added):
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”.
35. The submissions made by the Council to this Office do not, in my view, establish a reasonably foreseeable risk that release of the ERA Report will adversely affect the course of justice. The Council has simply made general statements as to what might happen were the Report to be released. It has pointed to a number of proceedings and potential proceedings which it says might be affected by disclosure of the Report. The Council has submitted that release of the Report in its current and potentially incomplete format “may portray a version of events very different to the version of events [the Council] may wish to portray in proceedings” and that this “may serve to confuse the issue before the Courts by presenting alternative viewpoints which the opposition could contend represented an official viewpoint of [the Council]”. It also submitted that it might be advised that the withheld information should not form part of any future proceedings and that “release of the withheld information could then result in that information forming part of the proceedings by being introduced by one of the other parties in the proceedings, thereby prejudicing and interfering with [the Council’s] rights”. However, the Council has failed to set out, despite many requests from this Office, the status of the proceedings which it asserts will be adversely impacted let alone the precise and reasonably foreseeable risks to those proceedings of the release of the Report.
36. It appears from the information provided to my Office that a number of the proceedings referred to by the Council were concluded by the time the ERA Report was provided to it in April 2019. While the Council’s submissions referred to six sets of proceedings (see paragraph 11(ii) above), my understanding from the documents and information provided by the Council, is that only four of those proceedings were in fact initiated, the prosecution under sections 32, 39 and 55 of the Waste Management Acts (referred to in paragraph 11(ii)(A)), the District Court application for a warrant (referred to in paragraph 11(ii)(D)), the proceedings initiated by the lessee (referred to in paragraph 11(ii)(E)) and the prosecution under section 14 of the Waste Management Acts (referred to in paragraph 11(ii)(F)). The prosecution referred to in paragraph 11(ii)(A) had been withdrawn by the time of the request while the District Court application at paragraph 11(ii)(B) had been granted. The status of the proceedings at 11(ii)(E) and 11(ii)(F) is unclear.
37. The “threatened injunction proceedings” under section 160 of the Planning Acts (referred to in paragraph 11(ii)(B)) were contemplated in August 2017, over two years prior to the finalisation of the ERA Report in April 2019, but do not appear to have been initiated. As of November 2020, over a year and a half after the finalisation of the ERA Report, no proceedings under sections 57 and 58 of the Waste Management Acts had been initiated. The Council has not provided any indication to this Office that such proceedings have since been initiated or that it intends to issue such proceedings. While the status of the proceedings taken against the Council by the lessee of the site (and referred to in paragraph 11(ii)(E) above) is unclear, it appears from the documents provided to my Office that the Council’s defence to those proceedings is that they are unsustainable, frivolous, vexatious and an abuse of process. It is not clear to me how the disclosure of the ERA Report would undermine that defence, let alone how it would adversely affect the course of justice having regard to the principles set out by Finlay Geoghegan J in UCC which make it clear that “in general, justice will be best served where there is candour and where all relevant documentary evidence is available” (see UCC, paragraph 4). The prosecution referred to in paragraph 11(ii)(F) relates to alleged obstruction of an authorised officer under the Waste Management Acts and it is not clear how such a prosecution, if it remains ongoing, would be adversely impacted by release of the ERA Report.
38. I am therefore not satisfied that article 9(1)(b) applies in the circumstances of this case.
39. Where legal privilege attaches to information the subject of an AIE request, a question may arise as to whether grounds for refusal of that information may be found in article 8(a)(iv) or in article 9(1)(b). However, having found that neither legal advice nor litigation privilege apply to the information at issue here, it is not necessary for me to consider this question further.
40. As I do not consider any of the grounds for refusal under the AIE Regulations to have been established in this case, it is not necessary for me to consider the public interest balancing exercise provided for by articles 10(3) and 10(4) of the Regulations.
41. Having carried out a review under article 12(5) of the AIE Regulations, I find that the Council was not justified in withholding the information sought. Accordingly, I annul the Council’s decision and direct disclosure of the EPA Report.
42. I also remit the matter to the Council for the limited purpose of determining whether, at the time of the appellant’s request, it held any information within the scope of that request, other than the EPA Report, which has not been disclosed to the appellant. If the Council determines that it did hold such additional information, then it should consider whether such information should be released to the appellant in accordance with the AIE Regulations.
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