Decision
Ms C and Longford County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132005-T6H0N5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132005-T6H0N5
Published on
Whether the Council is justified in refusing certain information requested by the appellant on the basis of articles 8(a)(i), 8(a)(iv), 9(1)(b) or 9(2)(d) of the AIE Regulations
1. On 12 July 2022, the appellant wrote to Longford County Council (the Council) “under Access to Information on the Environment (AIE) Regulation 2007 – 2018” to request “records held, created and identified by the Council within:
2. The “environmental incident” to which the request refers, as I understand, occurred in or around December 2017 in a housing estate in Shantobar, Longford and involved the discharge of oil from a tank on one of the properties in that estate into areas outside of that property which included the appellant’s residence. This was followed by interactions between the appellant, the neighbour from whose property the oil was allegedly discharged and the Council as to remediation of areas impacted by the discharge and who bore responsibility for such remediation. On or about 19 January 2018, a minor suffered a fall on a public footpath near the appellant’s property. Personal injury proceedings were instituted on behalf of that minor in September 2019 in which both the appellant and the Council were named as defendants. The cause of the fall as well as liability for the condition of the footpath at the time of the fall is disputed.
3. The reference to FOI 2021 (10) Shantobar is a reference to a request made by the appellant under the Freedom of Information Act 2014 on 24 March 2021. The Council released certain records to the appellant on foot of that request and withheld others. The decision of the Council was appealed to the Information Commissioner and the Council’s refusal of certain records was upheld in OIC-109749-N1W4Q5 Ms H and Longford County Council.
4. On 11 August 2022, the Council responded to the appellant. It extended the timeframe for response to her request by a further month “due to the complexity of your request”.
5. The Council issued its decision on 8 September 2022. It provided the appellant with a schedule listing 30 records which had been identified by it as relating to her request. The numbering of these records followed the numbering used for her 2021 FOI request and therefore is not sequential. The Council granted access to five records (Records 1, 2, 3, 7 and 22), part-granted access to eight records (Records 5, 6, 17 to 21 and 39) and refused access to seventeen records (Records 23, 24, 26 to 38, 40 and 41). It relied on articles 8(a)(i), 8(a)(iv) and 9(1)(b) to justify its refusal of information redacted from the part-granted records as well as the records which had been refused in full.
6. The appellant sought an internal review of the Council’s decision on 26 September 2022. Her internal review request referred only to the “refusal of Records 26 to 38 and 41 and full access to records 17,18, 19, 20, 21, and 22”. She also noted that her internal review was being sought on the basis of both the Freedom of Information Act and the AIE Regulations.
7. The Council provided its internal review decision on 17 October 2022. It informed the appellant that the internal review was being considered pursuant to the AIE Regulations and that the provisions of the Freedom of Information Act did not apply to her request but advised her that she could make a separate request under that Act if she wished to do so. It also advised the appellant that, although her internal review request referred to Record 22, she had been granted full access to that Record. The internal review went on to affirm the original decision to refuse access to Records 26 to 28 and 30 to 36 on the basis of articles 8(a)(i), 8(a)(iv) and 9(1)(b) of the AIE Regulations and to refuse Records 29, 37, 38 and 41 by reason of articles 8(a)(i) and 9(1)(b) of the Regulations. It varied the decision to refuse access to Records 17 to 21 and instead part-granted those records, redacting certain information on the basis of article 9(1)(b) of the AIE Regulations. It also affirmed the conclusion at original decision stage that the request did not relate to information on emissions into the environment such that article 10(1) of the Regulations did not apply.
8. The appellant appealed to my Office on 4 November 2022.
9. 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 records at issue. In addition, I have had regard to:
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. The Council has relied on articles 8(a)(i), 8(a)(iv) and/or articles 9(1)(b) and 9(2)(d) of the AIE Regulations to refuse to provide the appellant with access to some or all of Records 17, 18, 19, 20, 21, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and/or 41.
11. However, the appellant has made it clear in submissions to this Office that she is not seeking to be provided with any personal information contained with the Records referred to above. It is therefore not necessary for me to consider the question of whether the Council can rely on article 8(a)(i) to redact third-party personal information from Records 26, 27, 29, 30 to 36, 37, 38 and 41.
12. As part of my consideration as to whether article 8(a)(iv) may be relied upon by the Council, I will also consider whether the request is one which “relates to information on emissions into the environment” such that article 10(1) of the AIE Regulations applies.
13. In her appeal to this Office, the appellant submitted that she sought information on “results of environmental tests and reports undertaken” in relation to the oil discharge including “air quality, water and soil samples taken to establish the impact on the environment the discharging has had upon the public green” as well as “plans to remediate the public green directly adjacent to [her] land”. She also indicated that she wanted “to establish if the toxic pollutant from the uncleaned public green is currently reentering [her] land and causing recontamination of [her] soil” and whether “it is safe to grow vegetables in the soil of [her] garden” and “safe for [her] pets and other wildlife”. Finally, she argued that additional information should also be held by the Council “in relation to water ponding on the public footpath”. She has submitted that samples of tap water were taken by the Council either before or after the oil discharge and that the Council should hold records of this but that no such information was provided to her in response to her request. She submits that “if it is the case that there are no records of test results or environmental logs in relation to the first two emergency responses by the Roads Staff to the [oil discharge] incident, other than Road Staff Diary entries, we should be entitled to be informed that they don’t exist”. She also submitted that “any environmental records held or created by [the Council] which directly refers to [her property] should be released” and that “any records relating to [her] immediate environment which may affect the health and wellbeing of [herself], [her] family or [her] land/property and animals” were “[her] right”. In her most recent set of submissions to this Office she noted that she was “undertaking the appeal in the expectation there may be further records”.
14. The appellant also considers that the Council may have provided information to other parties connected with the incident which was not provided to her. She refers to letters from solicitors on behalf of the owner of the property from which the oil was allegedly discharged. The letter does note that the solicitor was liaising with the Council and is followed by a further letter, attaching correspondence from the Council “which sets forth the extent of their development in the matter”. The correspondence from the Council notes that the Council did attend Shantobar to investigate a report of oil on a footpath, spoke to the relevant property owner and that the Council considered remediation of the gardens of affected properties to be a civil matter. In my view, there is nothing in this correspondence to suggest that the third party has been provided with information which has been withheld from the appellant. My Investigator also asked the Council to confirm whether the Council had provided information to the relevant third party which had been withheld from the appellant and the Council confirmed that its position was that “no information has been shared with any third party in relation to the oil discharge incident as well as information in relation to the incident of 19 January 2018, which has not been provided to [the appellant]”.
15. The Council argues that the scope of the appeal ought to be limited to the decision of the Internal Reviewer made pursuant to article 11 of the AIE Regulations, specifically the decision to refuse access to Records 26 to 38 and 41 in full and access to those portions of Records 17 to 21 that were refused. It submits, however, without prejudice to that position that it does not hold any additional records within the scope of the appellant’s request as no air, water or soil tests were taken by it in relation to the oil discharge, it has no plans and does not hold records relating to plans to remediate the public green area other than those identified in Records 19 and 21 which refer to the placement of “dry oil as a goodwill gesture” and “holds no records relating to water ponding on the public footpath, other than those that have already been identified and are the subject of legal proceedings and which, in the Council’s view, are unrelated to the environmental incident”.
16. It is worth referring briefly here to the wording of the AIE Regulations. Article 7(1) provides that a public authority “shall…make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority”. Article 11(1) entitles an applicant to “request the public authority to review the decision, in whole or in part” where a request is refused in whole or in part. There is a further entitlement to appeal to this Office, set out in article 12 of the Regulations where “a decision of a public authority has been affirmed, in whole or in part, under article 11” (emphasis added).
17. This means that the parameters of the information to which an appellant may be entitled are set firstly by the terms of their initial AIE request. In this case the appellant sought “Records 17, 18, 19, 20, 21, 22, 23, 24” identified as part of an earlier request under the Freedom of Information Act referred to as “FOI 2021 (10) Shantobar”. She also sought “full access to all records pertaining to an environmental incident which commenced on 24th December 2017 at the estate of Shantobar, Ballinalee, County Longford” and “full access to all examination reports/records, test results, actions taken and reports produced in response to and pertaining to the environmental reports/incidents”. In other words, the appellant is only entitled to information which comes within those parameters and the submissions contained in her appeal, referred to in paragraph 13, must be referred to with those parameters in mind.
18. However, it is not just the terms of the original request which must be considered. In addition, the wording of the request for internal review must be considered. In this case, as referred to above, the appellant’s internal review request referred only to the “refusal of Records 26 to 38 and 41 and full access to records 17,18, 19, 20, 21, and 22”. It was open to the appellant to seek an internal review of the Council’s decision in its entirety but she did not do so. Neither did she suggest that she considered the Council to hold additional environmental information within the scope of her request which had not been provided to her. Instead, she specifically limited the request to the Council’s refusal of specified records and did not make any reference to the issue of whether further information existed beyond that which had been identified by the Council. This is relevant because article 12 of the AIE Regulations provides that an appeal to this Office shall, in essence, be a review of the internal review decision. It is therefore not open to the appellant to raise this additional issue at appeal stage. I consider that I would risk straying beyond the jurisdiction conferred on me by article 12 of the Regulations were I to find otherwise. I am also conscious that it remains open to the appellant to make a further request to the Council if she believes that additional information exists with which she has not been provided.
19. For the avoidance of doubt, the scope of this appeal is limited to the Council’s decision to refuse and partially refuse the information contained in Records 17 to 21, Records 26 to 38 and Record 41. I omit Record 22 from the scope of my review as this was provided to the appellant as part of the Council’s original decision.
20. The appellant has made a number of arguments in submissions which appear to relate to her dispute with the Council as to the manner in which it dealt with the discharge of oil from a neighbouring property. She has provided submissions and documentation to my Office which, she submits, demonstrates the Council’s normal procedures for dealing with oil spills. She has also referred to what she considers to be a number of shortfalls in terms of the Council’s handling of the incident. She expresses her view on a number of occasions that the information provided to her by the Council is misleading and argues that “the positions and legal actions/determinations taken by the body in question…were taken without any consultation, dialogue or involvement of any kind with myself the owner of the land heavily polluted by a third party”. In her internal review request, the appellant also provided the Council with her own information in relation to the “environmental incident” referred to in her request, along with what she considered to be “corrections” to the information which had been provided to her. She also argues that “it [was her] constitutional right to be permitted dialogue/consultation with the body before any action or position was taken by the body that would affect [her] or [her] household”. She also makes arguments that the Council has failed to comply with its statutory obligations including obligations under the Safety, Health and Welfare at Work Act 2005, the Local Government Water Pollution Act 1977 and the Air Pollution Act 1987. Finally, she argues that article 7 of the AIE Regulations requires a public authority to make “information pertaining to the environment” available under the Freedom of Information Act.
21. I consider it important to set out at this juncture, the jurisdiction conferred on me by article 12 of the AIE Regulations. Article 12(5) of the AIE Regulations provides that on receipt of an appeal, “the Commissioner shall –
22. As outlined above, the “decision of the public authority” referred to in article 12(5) is, according to article 12(3), the decision made at internal review stage (if such a decision has been made). It is a decision on the extent of the information to be provided to the appellant on foot of their request for environmental information. My function is not, therefore, to make findings regarding the incident that is the subject of the information requested including findings as to how the oil spill occurred. Nor is it my function to adjudicate on the propriety of the Council’s actions or to make any findings in relation to the “slip and fall” incident of January 2018. My function is to review the decision made by the Council at internal review stage in which, pursuant to the appellant’s request, it reviewed its decision to refuse access (in some cases fully and in others partially) to Records 17 to 21, Records 26 to 28 and Record 41. If I consider that decision not to comply with the Council’s obligations as provided for in the relevant sections of the AIE Regulations, I may affirm, vary or annul the Council’s decision and, where appropriate, require it to make further information available to the appellant. The decision in question however relates only to the provision of access to information and does not extend to decisions made by the Council in relation to the oil spill or its defence of proceedings in relation to the slip and fall incident.
23. It is also important to point out that the obligation on public authorities, set out in article 7(1) of the AIE Regulations is to “make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority” subject, of course, to the other provisions of the Regulations which provide that exceptions to that obligation may apply in certain circumstances. The AIE Regulations do not provide for an obligation to consult with an individual in the manner contended for by the appellant. That requirement may or may not be contained in other legislation or obligations. However, it does not arise by virtue of the AIE Regulations and it is therefore not within my jurisdiction to make any findings in that respect.
24. The appellant also seeks to have the Council correct what she considers to be misleading items in the information provided to her. While she is correct to note that article 5(1)(c) of the Regulations provides that a public authority shall “ensure that environmental information compiled by or for it is up-to-date, accurate and comparable”, it is again important to return to the provisions of the Regulations. Article 12(5) provides me with jurisdiction to “review the decision of a public authority”. As outlined above, that decision is the one made at internal review stage (if such a decision is made) in response to an appellant’s individual AIE request. The jurisdiction conferred on me by article 12 does not therefore extend to exercising a broader supervisory role over the accuracy of, or the manner in which public authorities comply with their obligations to organise, disseminate and maintain, the environmental information held by or for them. For that reason, I cannot make findings in relation to the accuracy of the information held by or for the Council within the scope of the request nor can I direct the Council to “correct” its information in the manner contended for by the appellant.
25. I have therefore had regard to the appellant’s arguments only insofar as they relate to the question of whether the Council is justified in withholding the information which is the subject of this appeal as can be seen from my summary of those arguments below.
26. I also consider it important to point out at this juncture that I do not consider that the Council’s original decision or its internal review provided the appellant with sufficiently detailed reasons for its refusal of information within the scope of her request. I accept that additional detail was provided to this Office as part of the Council’s submissions and the Council did engage with queries posed by the Investigator. However, articles 7(4) and 11(4) of the AIE Regulations make it clear that a public authority is required to provide reasoning for its decisions at original decision and internal review stage. The Council’s original decision and internal review simply informed the appellant that article 8(a)(i) had been applied as “the information in question related to confidential personal information of a third party” while article 8(a)(iv) applied as “release of [information] would prejudice the effectiveness of investigations of the Council and/or its defence of on-going legal proceedings”. Similar reasoning was provided in respect of article 9(1)(b). This amounts to reiteration of the wording contained in the relevant articles and the High Court in Right to Know v An Taoiseach has made it clear that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot…constitute a sufficient reason for the refusal”.
27. In addition, in response to queries from the Investigator probing the Council’s approach to the application of article 9(1)(b), the Council also sought to invoke article 9(2)(d) of the Regulations to justify refusal of certain information. Article 9(2)(d) was not mentioned to the appellant by the Council at original decision or internal review stage and it is not satisfactory for public authorities to seek to add additional grounds of refusal at appeal stage. The fundamental purpose of the duty to provide reasons (i.e. so that a requester can properly understand the basis for refusal) is, in my view, significantly undermined if a public authority seeks to invoke additional reasons for refusal throughout the course of an appeal to this Office.
28. I have dealt with the Council’s arguments in respect of article 9(2)(d) as I consider it within my jurisdiction to do so given that appeals to this Office are dealt with on a de novo basis as confirmed by the High Court in M50. I am doing so as I do not think that dealing with the arguments raised by the Council will cause prejudice to either party whereas I do consider that failure to do so might prejudice the appellant by causing further delays in the resolution of this appeal. However, I would encourage the Council to take steps to ensure that further detail is provided to applicants should circumstances arise in future where it seeks to refuse requests for environmental information under the AIE Regulations. This applies also in relation to the provision of reasons for the extension of time to deal with an AIE request as provided for in article 7(2) of the Regulations as I note that the Council’s communication to the appellant in that respect also simply reiterated the wording of the article without providing any additional reasoning.
29. Finally, as noted above, I am not considering the application of article 8(a)(i) of the Regulations as part of this review as that article has been relied upon by the Council to justify refusal of personal information which the appellant has submitted she does not seek as part of her request. My Investigator did nonetheless contact the third parties to whom the information relates (i.e. the neighbour from whose property the oil is alleged to have emanated and the parties involved in the alleged slip and fall incident) to provide them with an opportunity to make submissions, particularly as some of those parties are involved in the proceedings in respect of which the Council relies on article 9(1)(b) as grounds for refusal. No response was received from those third parties.
Submissions of the Parties
30. The arguments made by the appellant in support of her appeal may be summarised as follows:
31. The Council’s submissions may be summarised as follows:
32. There are a number of issues for consideration as part of this appeal. Before I consider whether articles 8(a)(iv), 9(1)(b) or 9(2)(d) provide grounds for refusal for all or part of the information at issue in this appeal, I will consider whether article 10(1) applies i.e. whether the request relates to information on emissions into the environment. This is because the application of article 10(1) impacts my analysis with respect to the application of article 8(a)(iv) of the Regulations.
Application of article 10(1)
33. Article 10(1) of the AIE Regulations provides that “notwithstanding article 8…a request for environmental information shall not be refused where the request relates to information on emissions into the environment”. This means that if the request does relate to information on emissions into the environment, as the appellant contends, it is not open to the Council to rely on article 8(a)(iv) of the Regulations in order to refuse access to the information.
34. The appellant submits that the information she seeks involves “a large and lengthy discharge of domestic oil pollution contaminating my land and the public land abounding my property” and also relates to “rain water/surface water at the locus of Shantobar” which may include “water ponding on the public footpath”. The Council accepts that Records 17 to 21 constitute information on emissions into the environment. It argues, however, that Records 26 to 38 and Record 41 do not relate, in a sufficiently direct manner, to the emission (i.e. the oil leak) to be considered information on emissions and instead relate to the slip and fall incident and to proceedings against the Council to which the appellant is a co-defendant.
35. It is important here to have regard to the precise wording of article 10(1), which states that article 8 shall not provide grounds for refusal “where the request relates to information on emissions into the environment”. Article 10(1) transposes article 4(2) of the Directive which similarly provides that certain grounds for refusal may not be applied “where the request relates to information on emissions into the environment”.
36. It is therefore clear from the wording of the Directive and the Regulations that the question is to be addressed from the starting point of the request itself. Before I analyse the request however, I think it is important to address some of the arguments put forward by the Council with respect to the interpretation of “emissions”.
37. The Council correctly points out that there is no definition of “emission” contained in the AIE Regulations. It notes that the Minister’s Guidance states that “emissions should be construed as discharges of whatever kind to all environmental media” and that “emissions into the environment means actual emissions and does not include information on, for example, plans on emissions which have yet to occur”. It notes that the Aarhus Guide states that the term “emission” has been defined in the Industrial Emissions Directive (2010/75/EU) as a “direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into air, water or land”. It submits that my predecessor found in CEI/13/0001 Friends of the Irish Environment and the Department of Agriculture, Food and the Marine and CEI/15/0035 Dan Danaher (on behalf of the Clare Champion) and Clare County Council, having regard to the decision of the Court of Justice in Greenpeace, that in order to constitute information relating to “emissions”, the information must relate in a sufficiently direct manner to an emission.
38. I consider it important to outline here that neither the Minister’s Guidance nor the Aarhus Guide are binding. As the CJEU has pointed out on numerous occasions, the Guide may be used as an aid to interpretation but it is not a binding instrument (C-182/10 Solvay and Others v Région Wallonne, paragraph 27). Indeed, the CJEU in Greenpeace and Bayer has specifically rejected the contention that the term “emissions” as used in the AIE Directive should be given the meaning provided for in the Industrial Emissions Directive. “Emissions” within the meaning of the Industrial Emissions Directive are the direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in certain industrial installations defined therein into air, water or soil (see Greenpeace, para 58). The idea that information must relate “in a sufficiently direct manner” to an emission is therefore linked to the definition contained in the Industrial Emissions Directive which the CJEU has made clear is not relevant in the context of AIE. The CJEU in Greenpeace found that the General Court had erred in law by finding “that it is sufficient that information relates, in a sufficiently direct manner, to emissions into the environment in order for that information to fall within the scope of information [which] relates to emissions into the environment’”.
39. I am unsure why the Council referred to the decision of my predecessor in CEI/15/0035 Dan Danaher (on behalf of the Clare Champion) and Clare County Council as it does not contain any analysis of article 10(1) of the Regulations. I also note that the decision of my predecessor in CEI/13/0001 Friends of the Irish Environment and the Department of Agriculture, Food and the Marine was based on the decision of the General Court in Greenpeace which was appealed to, and set aside by, the CJEU. The decision in Greenpeace concerned Regulation 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies. On the same day, the CJEU also delivered a decision in Bayer which considered the meaning of the term as used in the AIE Directive. Although the two decisions offer helpful guidance, since Regulation 1367/2006 is also designed to implement the obligations of the EU as signatory to the Aarhus Convention and also refers to the concept of “information on emissions into the environment”, I will refer primarily to the Bayer decision as that decision relates directly to the AIE Directive.
40. Both the Bayer and Greenpeace decisions involved requests for information relating to authorisations provided for the placing of plant protection products and biocides on the market. In Bayer, the request was made to the CTB, a Dutch public authority, under Dutch national law transposing the AIE Directive. In Greenpeace, the request was made to the European Commission on the basis of Regulation 1049/2001 and Regulation 1367/2006. The facts of both cases therefore are somewhat different to those arising in this instance but the decision nonetheless contains some useful general guidance.
41. In Bayer, the CJEU found, that the concepts of “emissions into the environment” and “information on emissions into the environment” are not to be interpreted in a restrictive way. This is because the inclusion of those concepts in the Directive is designed to ensure that certain grounds for the refusal of information cannot be invoked against the disclosure of ‘information relating to emissions into the environment’. That provision in turn gives effect to the principle (provided for in article 4 and Recital 16 of the Directive) that disclosure must be the general rule of the AIE regime and the grounds for refusal must be interpreted restrictively, and to the general principle of the widest possible access to environmental information held by or for public authorities set out in Recital 1 (see paras 55-58). Similar conclusions were reached in Greenpeace (see paras 50 to 55).
42. The CJEU went on to find that, despite reference in the Aarhus Guide to the definition of “emissions” contained in the Industrial Emissions Directive, the concept of “emissions” in the AIE Directive was a wider one and was not limited to emissions emanating from industrial installations. It noted that such a restriction would be contrary to the express wording of article 4(4)(d) of the Aarhus Convention which provides that although information may be refused to protect the confidentiality of commercial and industrial information subject to certain conditions, this shall not apply with regard to “information on emissions which is relevant for the protection of the environment”. The CJEU pointed out that “information concerning emissions emanating from sources other than industrial installations…are just as relevant to environmental protection as information relating to emissions of industrial origin” (para 72). Again, similar conclusions were reached in Greenpeace (see paras 56 to 70).
43. The CJEU did place a limit on the expansive interpretation to be applied to the concept of “information on emissions into the environment”, finding that it “must…be limited to non-hypothetical emissions, that is to say actual or foreseeable emissions”. In the Bayer case, this meant that only actual or foreseeable emissions from the plant protection product in question under normal and realistic conditions of its use were covered. In other words, the scope of what was covered by the concept of “information on emissions into the environment” would not extend to “data from tests whose objective is to study the effects of the use of a dose of the product or substance in question which is significantly above the maximum dose for which the marketing authorisation is granted” but it would cover “studies which seek to establish the toxicity, effects and other aspects of a product or substance under the most unfavourable realistic conditions which could possibly occur”. Again this limitation was imposed by the CJEU in view of the purpose of the AIE Directive since “it follows in essence from Article 1 of [the Directive], read in conjunction with Article 2(1), that the objective of [the Directive] is to ensure access to information concerning factors, such as emissions affecting or likely to affect elements of the environment, in particular air, water and land” which “by definition…does not include purely hypothetical emissions” (see paras 80, 90 and 91).
44. Similar conclusions were reached in Greenpeace. In particular, I consider the following paragraph of the CJEU’s decision in Greenpeace to provide some useful guidance on where the line should be drawn in the particular circumstances of this case. At paragraph 80, as part of its considerations on whether it was necessary for the information to relate “in a sufficiently direct manner” to emissions into the environment, the Court found that:
In other words, the removal of limitations around access to information on emissions into the environment is designed, in part, to allow members of the public to “stress test” conclusions reached by public authorities and actions taken by them with regard to emissions and their impact or likely impact.
45. It is therefore clear that the concept of “information on emissions into the environment” is to be interpreted broadly. With that in mind, I return to the starting point of my analysis, that is the request itself. In this case, the appellant requested:
46. The first part of her request refers to a previous request under the Freedom of Information Act which sought a number of categories of information relating to the “environmental incident” at Shantobar referred to in parts 2 and 3 of her AIE request above. Her request is therefore for information relating to what she refers to as the “environmental incident”. The environmental incident in question is the alleged discharge of kerosene oil from a storage tank which is an emission into the environment.
47. The Council interpreted scope of request as including information concerning the slip and fall. For the avoidance of doubt, I am not making any binding conclusions as to whether the slip and fall was connected to or caused by the environmental incident, that is a matter which, if it is to be decided, is for the Circuit Court to consider as part of the personal injury proceedings. For the purposes of my analysis however, it is relevant that the Council linked the complaints relating to the environmental incident and the slip and fall incident. While the Council’s position is that the environmental incident had no causal relationship to the slip and fall, it does acknowledge, in submissions to this Office, that it “linked the two logged complaints due to the proximity of the events and the fact that the slip and fall complaint alleges that the environmental incident caused the slip and fall”. I consider the findings of the Court of Justice in Greenpeace to be relevant in this regard as they suggest that one of the purposes of the EU legal instruments which provide for the right of access to environmental information, particularly in the context of information on emissions, is to allow the public to scrutinise conclusions of public authorities as to the impact of those emissions. In this case, the Council is of the view that the oil discharge did not contribute to or cause the slip and fall incident but that is not to say that the oil discharge does not relate to the slip and fall incident, as the latter is a broader concept, designed, as the CJEU notes, to allow for greater public scrutiny of the decisions and conclusions of public authorities. In my view, the Council itself has acknowledged that the information concerning the slip and fall relates, to some degree, to the oil discharge given the proximity of the two events and the allegations (which, again, it is not for me to take a view on) that there is a causal factor between the two. Given that the CJEU has made it clear on two occasions that the concept of “information on emissions into the environment” is to be interpreted broadly, and given that article 10(1) provides for a broader parameter by specifying that it applies “where the request relates to information on emissions into the environment”, I am satisfied that Records 26 to 38 and Record 41 should be considered to come within the scope of article 10(1), along with Records 17 to 21.
48. This means that the Council cannot rely on article 8(a)(iv) to justify refusal of those Records.
49. I also note that the Council is also of the view that articles 9(1)(b) and 9(2)(d) of the Regulations provide it with grounds to refuse all of the information at issue in this appeal. Reliance on articles 9(1)(b) and 9(2)(d) is not precluded by article 10(1) and it is therefore necessary for me to consider the application of those articles.
Application of article 9(1)(b)
50. Article 9(1)(b) of the Regulations provides as follows:
51. The Council has invoked article 9(1)(b) to justify refusal of Records 17 to 21, Records 26 to 38 and Record 41. It submits that release of the withheld information in those records “in an open legal case under investigation, would adversely affect the course of justice because it would prejudice the Council’s position on determination of liability in respect of the alleged incident and/or its defence of legal proceedings”. Having made enquiries in relation to those proceedings, the Investigator was informed that the proceedings had been listed for hearing at Longford Circuit Court on 2 May 2023 but were adjourned at the Council’s request. The Council also informed the Investigator that the case was not reached on the Court’s call over later in May and has now been listed for the November call over, with the possibility of a hearing being scheduled for December 2023.
52. The Council further argues that Records 17 to 21, Records 26 to 28 and Records 30 to 36 are protected by litigation privilege. I will deal with this aspect of the Council’s argument in the first instance.
53. Before considering the specific issue of whether litigation privilege applies to some of the information at issue in this appeal, I consider it useful to set out the threshold which must be met before article 9(1)(b) may be considered to apply to information which is the subject of an AIE request. If this threshold is met, it is then necessary to assess whether the interest to be protected by relying on article 9(1)(b) outweighs the public interest in disclosure of the information to which article 9(1)(b) applies.
54. As is clear from the wording of article 9(1)(b), it must be established that release of the information will have an adverse impact on the course of justice before the grounds for refusal set out in that article can be considered to apply. Neither the AIE Regulations nor the AIE Directive explicitly provide that the burden rests with the public authority to establish such an adverse impact. However, the general scheme of both the Regulations and the Directive would appear to support such a position, particularly given that Recital 1 makes it clear that the objective of the Directive is to ensure “increased public access to environmental information”, Recital 9 provides that “it is also necessary that public authorities make available and disseminate environmental information to the general public to the widest extent possible” and Recital 16 provides that “the right to information means that disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases” with grounds for refusal needing to be interpreted in a “restrictive way”. This is echoed in article 10(4) of the AIE Regulations.
55. This interpretation is supported by the decision of the CJEU Land Baden-Württemberg in which it found, at paragraph 69, that:
56. This means that in order to rely on article 9(1)(b) of the Regulations to justify refusal, it is for the Council to establish that there is a reasonably foreseeable adverse risk to the course of justice were the information at issue to be released.
57. As noted above, the Council have argued that release of Records 17 to 21 and Records 31 to 36 would undermine the litigation privilege which it considers those records to benefit from. Litigation privilege applies to communications which come into existence for the dominant purpose of gathering evidence for use in proceedings. This includes communications with third parties (other than a lawyer) if they came into existence for that dominant purpose (Malek (ed), Phipson on Evidence, 17th ed (London, 2010), p 646).
58. The judgment of Finlay Geoghegan J in UCC provides useful guidance on the history and application of the concept of litigation privilege and summarises the relevant principles as follows (see paragraph 4):
59. 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.
60. I must therefore consider the background to the preparation of Records 17 to 21, Records 26 to 28 and Records 30 to 36, as well as the records themselves, to determine their purpose or purposes. It is only in the event that I am satisfied that the dominant purpose of each record was contemplated or pending proceedings, that I can find that litigation privilege attaches to that record. 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 (paragraph 5) but the ultimate decision on the dominant purpose is a matter for objective determination. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions as it is not the function of this Office to disclose information. This means that the detail that I can give about the content of the records and the extent to which I can describe certain matters in my analysis is limited however all records have been reviewed in full.
61. Record 17 was created on or about 19 January 2018, around the same time as the slip and fall incident to which the Circuit Court proceedings relate but before proceedings were threatened or initiated. I note however that it is sufficient if litigation is “apprehended” at the time of the creation of the record. The first section of Record 17 is a screen shot of an entry on the Council’s complaint management system. The second is an investigation memorandum along with some photographs which appear to be attached to the entry on the complaint management system and discuss the follow up actions taken in respect of the complaint. In submissions to this Office, the Council has indicated that its environmental section “maintains a complaint management system (the “System”) for recoding complaints and follow up actions”. It goes on to note that “a complaint, once recorded to the System, will then be assigned to a relevant staff member for investigation” and that “the System serves as a repository for information, both written and photographic etc and investigation reports pertaining to any given complaint”. It appears from this submission that a record similar to that contained in the first two sections of Record 17 is created for each complaint received by the Council. I am therefore not satisfied that the dominant purpose of these sections was to obtain legal advice or enable the Council’s solicitor to prosecute or defend an action. Although it might be possible in this case that litigation in relation to the slip and fall was apprehended by the Council at the time the entry and attachments were created, it appears to me from the Council’s submission that an entry on the complaint system relating to the complaint itself and the follow-up action would have been taken regardless of whether litigation was apprehended. In those circumstances, having regard to the judgment of Finlay Geoghegan J in UCC, it cannot be said that the dominant purpose was the defence of potential litigation.
62. The final documents contained in Record 17 are letters between the Council and a solicitor acting on behalf of the individual from whose property the oil leak was alleged to have emanated. The letter to the Council was not created by the Council and I am therefore not satisfied that the Council can assert that the dominant purpose of the creation of these documents was to obtain legal advice or enable the Council’s solicitor to prosecute or defend an action. The letter from the Council makes no reference to the slip and fall proceedings and its purpose appears to have been to correct what the Council considered to have been a misapprehension on the part of the property owner as to the Council’s position on the potential impact of the oil spill. The onus is on the Council to establish that the dominant purpose of this letter was to obtain legal advice or enable the Council’s solicitor to prosecute or defend proceedings and I am not satisfied that this has been established. I also note that neither the solicitor’s letter to the Council nor the Council’s response is marked privileged which one would expect to be the case where the understanding of the parties was that the information contained therein should benefit from legal privilege. Finally, it appears that the appellant is already in possession of this correspondence as copies of certain letters have been provided by her to this Office.
63. I am therefore not satisfied that the Council has demonstrated that the dominant purpose of Record 17 was to obtain legal advice or enable the defence of any action taken against the Council such that this record should benefit from litigation privilege.
64. Records 18 to 21 are copies of diary entries taken by Council employees recording their response to a complaint relating to the oil spill, all of which pre-date the slip and fall. Again, this is not determinative as litigation privilege might apply if it could be said that litigation was apprehended at the time the entries were made. It does not appear however from the content of those entries that any such litigation was apprehended. In addition, the Council has noted in submissions to this Office that “Council staff, such as general overseers and outdoor staff, maintain diaries recording their day-to-day activities relating to the investigation of complaints and other activities” which “allows employees to keep a record of any site visits for later uploading to the System and…to demonstrate to their line managers what their day-to-day activities have been”. This suggests that the dominant purpose of the creation of the diary entries was not to seek legal advice or enable the prosecution or defence of proceedings. It is for the Council to demonstrate otherwise and I am not satisfied that it has done so.
65. I am therefore not satisfied that litigation privilege attaches to Records 18 to 21.
66. Records 26 to 28 are emails sent between Council staff following a request from a member of staff to prepare a response to a letter from a member of the public in relation to the slip and fall. The original email does note that a claim has been received in relation to the slip and fall and that the matter is with the Council’s insurer. However, I am not satisfied that the dominant purpose of these emails is preparation for litigation as the originating email suggests that at least equal purpose is the preparation of a response to the member of the public. I am therefore not satisfied that litigation privilege attaches to Records 26 to 28.
67. Record 30 is an email from the Council to its insurer. It does appear to relate to the claim however it is administrative in nature and does not reference any detail in relation to the Council’s defence or its position on the substantive claim. Having regard to the first two principles outlined by Finlay Geoghegan J and set out in paragraph 58 above, I do not consider it necessary to restrict the disclosure of this document on the basis of litigation privilege as the disclosure of the document would not prejudice the Council by revealing its position or intended strategy for the Circuit Court proceedings.
68. Record 31 is an email from a third party engaged by the Council’s insurer seeking background information on the slip and fall incident. I am satisfied that the dominant purpose of this document was to enable the insurer to defend the slip and fall proceedings on behalf of the Council and this record is therefore subject to litigation privilege.
69. Record 32 contains a number of documents. The first is an internal email between Council staff which requests a response to the queries contained in Record 31. The documents contained in Record 31 also appear as attachments. I am satisfied that the documents contained in Record 31 are subject to litigation privilege and I also consider that the dominant purpose of the email in Record 32 was to enable the Council to respond to the insurer to prepare for pending litigation relating to the slip and fall. However, Record 32 also contains a letter from a solicitor acting for the appellant seeking to put the Council on notice of its client’s position. This letter was not created by the Council or on its behalf and I am therefore not satisfied that the Council can claim litigation privilege in respect of it.
70. Record 33 contains the same documents as Record 32 along with one further email. The same considerations apply to the documents in Record 32 as I have outlined above. Again, I consider that the dominant purpose of the additional email was to enable the Council to respond to the insurer to prepare for pending litigation relating to the slip and fall. I am therefore satisfied that the documents in Record 33 are subject to litigation privilege, with the exception of the letter from the appellant’s solicitor.
71. Records 34 and 35 appear to be an emails among Council staff discussing the incident for the purpose of preparing a response to the insurer. Again, I am satisfied that the dominant purpose of these communications was the preparation of a defence for the impending litigation.
72. Record 36 is the response from the Council to the insurer and I am also satisfied that this response benefits from litigation privilege.
73. I am satisfied that Record 31, the emails identified in Records 32 and 33 and Records 34 to 36 are subject to litigation privilege (the Privileged Documents). That is not the end of the matter however as I must be satisfied that release of those documents, in circumstances where they are subject to legal privilege, would have an adverse impact on the course of justice. I am satisfied, in this case, that releasing documentation which is the subject of litigation privilege before the relevant proceedings have been heard would have a reasonably foreseeable adverse impact on the course of justice as it would defeat the purpose of such privilege. That purpose was referred to by Finlay Geoghegan J in UCC, in which she quoted the observations of Fish J of the Canadian Supreme Court in Blank v Canada who noted that the object of litigation privilege “is to ensure the efficacy of the adversarial process…and to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure”. The interest to be protected by relying on article 9(1)(b) to refuse access to the Privileged Documents is the interest in ensuring that the Council is permitted to prepare its defence of the proceedings in private, without adversarial interference thereby ensuring the effective administration of justice before the Circuit Court. I accept the Council’s arguments that, in this case, it is more appropriate that the Circuit Court with carriage of these proceedings would decide whether documents which appear to me to benefit from litigation privilege should be disclosed. On the other hand, there is a public interest in disclosure of the documents both for general reasons of transparency and particularly as they relate to the relationship between the oil spill, the actions of the Council and the slip and fall. However, information within the scope of the appellant’s request has been provided by the Council and further information will be provided as a result of this decision. The release of this information lessens the weight of the general transparency argument in favour of release of the Privileged Documents. In addition, the hearing of the Circuit Court proceedings, lessens the weight of the more specific public interest in release of the Privilege Documents insofar as their release would promote transparency with regard to the relationship between the environmental incident and the incidents which followed. I am therefore satisfied that article 9(1)(b) justifies refusal of the Privileged Documents. I have reached this conclusion on the understanding that none of these documents have been disclosed by the Council as part of the discovery process in the present proceedings. My Investigator queried whether any of the information contained in Records 17 to 21, Records 26 to 38 and Record 41 had been the subject of any order for discovery made by the Circuit Court or otherwise disclosed to the plaintiff and/or co-defendants as part of the ongoing Circuit Court proceedings. The Council’s response noted that the discovery process was ongoing and that it had provided a number of documents to its solicitors so that a response to a request for discovery could be prepared but that it was the Council’s intention to rely on litigation privilege in respect of those documents.
74. I must now consider whether the remaining records refused by the Council are subject to the grounds for refusal contained in article 9(1)(b), in other words, whether their release would adversely affect the course of justice.
75. As outlined above, the Council’s position is that release of all withheld information “in an open legal case under investigation, would adversely affect the course of justice because it would prejudice the Council’s position on determination of liability in respect of the alleged incident and/or its defence of legal proceedings”. It submits that the Minister’s Guidance states that “environmental information relating to anything which is the subject matter of legal proceedings or any formal inquiry (whether past or present), or any preliminary investigation, may be refused”. It submits that article 9(1)(b) applies to those portions of the records that refer to preliminary investigations conducted by the Council following complaints arising from the slip and fall and Records 26 to 38 and Record 41 on the basis that their release, in ongoing legal proceedings, would adversely affect the course of justice.
76. As the appellant points out, however, the Council’s investigations and those conducted by its insurer into the slip and fall are now complete and this is indicated by correspondence sent to the appellant and to her solicitor which was provided to this Office as well as by correspondence from the Council’s insurers to a third party, dated 21 June 2018, which was provided to the appellant by the Council. It is therefore unclear how release of the withheld information would adversely impact those investigations.
77. I do accept that the proceedings have yet to be heard. However, the Council has provided no detail as to the basis for its position that release of the withheld information “would prejudice [its] position on determination of liability in respect of the alleged incident and/or its defence of legal proceedings”. It has referred to the ongoing proceedings and, as outlined above, it has argued that litigation privilege applies to certain information but it has provided no further detail as to how release of the remaining withheld information could reasonably foreseeably adversely impact the course of justice. It has indicated, as part of its arguments on the public interest balancing exercise, that there is a strong public interest in ensuring that the procedures articulated in the Court Rules are followed with respect to those proceedings rather than AIE being used as a means to circumvent those procedures. The Council has not explained the basis on which it considers that AIE is being used in this case to circumvent court procedures and there is no evidence before me to suggest that this is the case.
78. The AIE Regulations do make it clear that environmental information may be refused where necessary to mitigate against any adverse effects on the course of justice. However, as I have outlined in paragraphs 54 to 56, the Regulations, the Directive and the decision of the CJEU in Land Baden-Württemberg also make it clear that the onus is on the public authority refusing the information to set out the basis on which such an adverse impact could reasonably foreseeably occur and on which it can be considered that the interest in guarding against that impact outweighs the public interest in disclosure of the information.
79. I do not consider the Council to have done so in this case and, based on the information before me, I do not consider that there is a basis to conclude that release of the withheld information (other than the Privileged Documents) would have a reasonably foreseeable adverse impact on the course of justice. I therefore do not consider article 9(1)(b) to apply to that information and it is not necessary, in those circumstances, for me to go on to consider the public interest balancing test in any further detail.
Article 9(2)(d)
80. In later submissions to this Office, the Council submits that if the redacted parts of Records 17, 18, 19, 20 and 21 cannot be withheld on the basis of article 8(a)(i) or 9(1)(b) then they should be withheld on the basis of article 9(2)(d) as they constitute “internal communications” within the meaning of that article, being internal notes created following a call-out arising from a complaint. It submits that the “explanatory memorandum to the AIE Directive sets out that the interest sought to be protected by affording public authorities discretion not to disclose environmental information contained in internal communications is the requirement that such bodies be ‘afforded space to think in private’”. It submits that “the redacted portions of the Records are instrumental in the Council’s internal consideration of the complaint it received regarding the environmental incident” and that “the Records informed the Council’s decision-making in response to the slip and fall complaint, i.e. to place dry oil in the trench as a goodwill gesture”.
81. Article 9(2)(d) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure”. It transposes Article 4(1)(e) of the AIE Directive which provides that Member States may provide for a request for environmental information to be refused if the request concerns internal communications, taking into account the public interest served by disclosure.
82. Records 17 to 21 do appear to come within the definition of “internal communications” set out by the Court of Justice in Land Baden-Württemberg. The CJEU found, at paragraph 53 of its decision, that “the term ‘internal communications’ covers all information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received”.
83. However, it is then necessary to have regard to the second limb of article 9(2)(d), which requires account to be taken of “the public interest served by the disclosure”. In Land Baden-Württemberg, the CJEU found that “the exception permitting access to internal documents to be refused is intended to meet the need of public authorities to have a protected space in order to engage in reflection and pursue internal discussions”. It also found that, while this exception was not limited in time, given that “the material scope of the exception…is particularly broad” the weighing of the interests involved when deciding whether that exception should apply “must be tightly controlled” (see paragraphs 44 and 60).
84. As outlined above, the CJEU also found at paragraph 69 of Land Baden-Württemberg that “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”. The Council has not provided any indication of how the disclosure of the withheld information it considers to be internal communications would undermine its ability to think in private, particularly in circumstances where the environmental incident occurred over five years ago and the actions taken by the Council in response to that incident, including any investigations undertaken by the Council and its insurers, have concluded, with the exception of the Court proceedings which I have dealt with as part of my considerations relating to article 9(1)(b). Having assessed the Records at issue and considered the evidence before me, I do not see any basis for me to reach a conclusion that there would be an adverse impact on the Council’s private thinking space were the redacted parts of Records 17, 18, 19, 20 and 21 to be released.
85. I am therefore not satisfied that article 9(2)(d) provides the Council with grounds to refuse Records 17 to 21.
86. Having carried out a review under article 12(5) of the AIE Regulations, I vary the Council’s decision. I uphold its refusal of the Privileged Documents (i.e. Record 31, the emails identified in Records 32 and 33 and Records 34 to 36) on the basis of article 9(1)(b) of the AIE Regulations. However, I direct release of the remaining withheld information to the appellant (i.e. the refused portions of Records 17 to 21, Records 26 to 31, 37, 38 and 41). I note, as outlined above, that the appellant has made it clear that her request does not include a request for any personal information contained in the withheld information.
87. 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.
Ger Deering, Commissioner for Environmental Information