Decision
Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/12/0008
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/12/0008
Published on
Appeal to the Commissioner for Environmental Information
European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2011
Appellant: Ms. Attracta Uí Bhroin
Public Authority: Department of Arts, Heritage and the Gaeltacht (the Department)
Issue: Whether the Department was justified in refusing the appellant's request for a list of AIE requests on the ground that the information concerned is not environmental information within the meaning of the Access to Information on the Environment (AIE) Regulations
In a request dated 14 March 2012, the appellant sought access under the AIE Regulations to a list of all AIE requests received by the Department from 1 Jan 2011 to date together with:
The Department refused the appellant's request on the basis that it did not consider the requested information to be "environmental information" within the meaning of the AIE Regulations. In its internal review decision dated 12 June 2012, the Department suggested that the information sought may be available under the Freedom of Information Acts 1997 to 2003 ("the FOI Act"). On 11 June 2012, the appellant appealed to my Office against the Department's decision. In support of her appeal, the appellant made a lengthy submission setting out her reasons for believing that the information she has requested meets the environmental information definition.
In a letter dated 11 October 2012, Ms. Melanie Campbell, Investigator, informed the appellant of her preliminary view on the matter. Briefly stated, Ms. Campbell considered that the Department's decision to refuse the appellant's request was correct. The appellant made further submissions in response to Ms. Campbell's preliminary view letter in a letter dated 8 November 2012 and by telephone on 15 November 2012. Having had regard to the appellant's submissions, I have decided to conclude this appeal by way of a formal, binding decision.
The question before me is whether the appellant's request is for "environmental information" within the meaning of the AIE Regulations.
Definition of "environmental information"
The AIE Regulations are based on Directive 2003/4/EC. In line with Article 2(1) of the Directive, Article 3(1) of the AIE Regulations defines "environmental information" as
"any information in written, visual, aural, electronic or any other material form on-
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites . . . and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost benefit and other economic analyses and assumptions used other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c)".
In Case CEI/11/0001, Mr. Gavin Sheridan and Central Bank of Ireland (26 March 2012), available at www.ocei.gov.ie, I noted that there are limits to the scope of the AIE regime. Having regard to the comments of the European Court of Justice (ECJ) in Glawischnig v. Bundesminister für soziale Sicherheit und Generationen, Case-316/01 (12 June 2003) in relation to the definition of environmental information, I found that, in order for information to qualify as "environmental information" for purposes of the Regulations, it is necessary for the information to fall within one of the six categories set out in the definition in Article 3(1).
In relation to the question of "activities" under paragraph (c) of the definition, I noted that such activities only come within the scope of the definition by virtue of their direct or indirect link to an impact on the elements of the environment. In the circumstances, I found that information on an activity must, at a minimum, reflect the link to the environmental impact of the activity in order to fall within the ambit of paragraph (c); it is not sufficient for information simply to be related to the activity. To put it another way, there must be a sufficient connection between the information concerned and an aspect of the activity that has an effect on the environmental elements and factors referred to in paragraphs (a) and (b) of the definition.
With some reservation, I accepted that official travel by car is an activity within ambit of paragraph (c) of the definition. However, I questioned whether the definition of environmental information was intended to encompass the activities of individual staff members of public authorities as compared to higher level measures and activities such policies, legislation, plans, programmes, and environmental agreements, i.e. the examples given in paragraph (c). I have since given this question further consideration in light of my recent decision in CEI/11/0007, Mr. Pat Swords and Department of Environment, Community and Local Government (20 February 2012), finding that it is neither permissible nor reasonable having regard to the Directive for public authorities to impose search and retrieval fees for the work involved in processing AIE requests. The basis for finding that search and retrieval fees are not reasonable is that it is apparent that the scheme of the AIE regime envisions that the environmental information held by public authorities will be systematically organised, catalogued, and at least ready for examination in situ free of charge and even active dissemination to the public by information technology or by other electronic means. The corollary to the requirements of the AIE regime must necessarily be, however, that public authorities are permitted to take a reasonable, objective, and pragmatic approach to the definition of environmental information. Moreover, I note that, in the recent "Report from the Commission to the Council and the European Parliament on the experience gained in the application of Directive 2003/4/EC on public access to environmental information", dated 17 December 2012, the European Commission drew a distinction between the access rights that exist for environmental information, described as "information in any form on the state of the environment or on the state of human health and safety", on the one hand, and for "general administrative information" on the other.
In this case, the appellant contends that her request is for environmental information, because granting her request would reveal information regarding the timeliness and efficacy of AIE decision-making. The timeliness and efficacy of AIE decision-making, in turn, affect the ability of the public to participate effectively in environmental decision-making and thus have an impact on the overall purpose of the AIE regime, which is to achieve a better environment through more effective public participation in environmental decision-making. The appellant therefore maintains that her request is for information on a measure or activity affecting or likely to affect the environment as well as for information on a measure or activity designed to protect the elements of the environment. In her submissions made in response to Ms. Campbell's preliminary view letter, the appellant emphasises in particular that the Directive is designed to protect the environment; therefore, she argues that any information on how public authorities operate under the Directive is information on a measure or activity designed to protect the environment.
I accept that the AIE Regulations and Directive are measures designed to protect the elements of the environment, but in an indirect and aspirational manner only. Recital (1) of the Preamble to the Directive reflects that AIE is intended to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. Public access to environmental information is thus expected to contribute "eventually" to a better environment. It does not follow, however, that any administrative action taken by public authorities under AIE is itself a measure or activity affecting or likely to affect the environment; nor is such administrative action necessarily a measure or activity designed to protect the environment.
Under AIE, applicants do not need to state an interest when seeking access to environmental information upon request. Thus, while it is envisioned under the Directive that public access to environmental information will lead, eventually, to a better environment, an interest in protecting the environment is not required in order the make an AIE request. Even where an applicant is interested in environmental protection, it is the action taken by the applicant when equipped with the environmental information s/he seeks that may, depending upon the circumstances, have a positive impact on the elements of the environment, not the access to the information in and of itself. I therefore consider that the link between AIE requests, including the administrative action taken on the requests, and any environmental impact is too remote and subject to too many variables for information on the requests to qualify as environmental information within the meaning of paragraph (c) the definition.
Moreover, in making decisions on whether or not to grant requests for access to environmental information, the staff of public authorities are simply carrying out their statutory functions in what should be a fair and impartial manner, having regard to various relevant interests, including the interests reflected in the grounds for refusal where appropriate. The intent of the applicant in making the request, however, is not a relevant consideration. Thus, while public access to environmental information may eventually lead to a better environment through more effective public participation in environmental decision-making, I do not accept that the processing of AIE requests by public authorities is itself is "designed" to protect the elements of the environment or that it otherwise qualifies as a measure or activity within the meaning of paragraph (c) of the environmental information definition. I note that untimely or otherwise ineffectual decision-making by public authorities may unduly delay the grant of requests for access to environmental information, which is unfortunate and no doubt frustrating for applicants who are truly interested in seeking to protect the environment through more effective participation in environmental decision-making. Nevertheless, I do not consider that the intentions of certain applicants in making AIE requests can form a legitimate basis for finding that information on the processing of AIE requests is a measure or activity within the meaning of paragraph (c) of the environmental information definition.
I find no other basis for concluding that the information requested by the appellant meets the definition of environmental information under the Regulations. I therefore concur with Ms. Campbell's view that the Department's decision to refuse the appellant's request was correct. However, as the appellant is aware, she is entitled to make a request for the records she seeks under the Freedom of Information Act.
In accordance with Article 12(5) of the AIE Regulations, I have reviewed the decision of the Department in this case. I find that the Department was justified in refusing the appellant's request on the ground that the information concerned is not "environmental information" within the meaning of the Regulations. I affirm the Department's decision accordingly
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.
Emily O'Reilly
Commissioner for Environmental Information
13 March 2013