Decision
Right To Know CLG and Environmental Protection Agency
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140990-Q6L2R2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140990-Q6L2R2
Published on
Whether the EPA was justified in relying on articles 9(1)(c) and 9(1)(d) of the AIE Regulations to refuse the release of shape files from the National Land Cover Map
15 May 2024
1. The EPA is a party to the National Mapping Agreement (NMA) with Tailte Éireann effective as of 1 January 2017.
2. The National Land Cover Map (the NLC) was produced by the surveying function of Tailte Éireann in partnership with the EPA and with the support of members of the cross-governmental national land cover and habitat mapping (NLCHM) working group. The NLC is a comprehensive geospatial database, incorporating approximately 10.1 million database features, derived using, among other sources, imagery captured by Ordnance Survey Ireland (the OSI, now the National Mapping Division of Tailte Éireann) and vector data from the OSI’s core spatial database (named the ‘Prime 2’ database). It was released on 21 March 2023. It is available for purchase from Tailte Éireann on a commercial basis.
3. The NLC was produced from data provided by various bodies, as listed in the report accompanying its release. The EPA was not one of the bodies which provided source material for the NLC. Although it had a role in assisting the creation of the NLC, the EPA has the NLC in its possession as a party to the NMA.
4. On 22 May 2023, the appellant made an AIE request to the EPA seeking a copy of specified shape files (*.shp) from the National Landcover Map (the NLC).
5. On 20 June 2023, the EPA issued a decision in which it refused access to the records, relying on articles 9(1)(c) and 9(1)(d) of the AIE Regulations. On 21 June 2023, the appellant requested an internal review of this decision. On 20 July 2023, the EPA issued an internal review decision, affirming the original decision, and relying on the same exemptions.
6. The appellant appealed to this Office on 27 July 2023. The EPA identified one relevant record, being a GIS database.
7. The Commissioner for Environmental Information issued a decision in Right to Know CLG and Tailte Éireann (OCE-138355-H5S8J1) on 29 April 2024, in which the appellant in this appeal had made an AIE request to Tailte Éireann on 22 March 2023 seeking the release of the NLC. The intellectual property rights of Tailte Éireann are more fully considered in that decision.
8. I am directed by the Commissioner to carry out a 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 by the EPA. In addition, I have had regard to:
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
11. The scheme of the AIE Regulations, and of the AIE Directive, makes it clear that there is a presumption in favour of release of environmental information. Subject to that presumption, a public authority may refuse to release environmental information where an exemption under articles 8 or 9 applies and the interest in maintaining that exemption outweighs the public interest in disclosure.
12. The EPA raised its obligations under the NMA as reason it was bound not to release the NLC. This question engages the exercise of intellectual property rights by Tailte Éireann, which was considered in Right to Know CLG and Tailte Éireann (OCE-138355-H5S8J1).
13. This review considers whether the EPA was justified in relying on either article 9(1)(c) or article 9(1)(d) of the AIE Regulations to refuse the release of the environmental information requested. As the decision in this appeal follows closely on that in OCE-138355-H5S8J1, article 9(1)(d) of the AIE Regulations will be considered first. Article 9(1)(c) is considered thereafter for completeness.
Intellectual property: Whether article 9(1)(d) of the AIE Regulations applies
14. The EPA described its role in the creation of the NLC as being to help to develop the machine learning algorithms that classified the landcover map. The EPA was involved in this task because of its prior experience of landcover classification. However, the EPA did not provide the data sources that form the basis of the map.
15. Therefore, the invocation of article 9(1)(d) is in respect of the intellectual property rights of third parties, rather those of the EPA itself. The map was created by Tailte Éireann, but the EPA refer to the fact that it was created from a number of data sources, rather than just the Tailte Éireann data requested by the applicant.
16. The bodies which provided data sources are listed in the Report of the National Land Cover Map of Ireland 2018. Table 2.1 lists the owners of the core data sources used in the classification process, which as well as Tailte Éireann, includes the European Space Agency, the Department of Agriculture, Food and the Marine, Coillte, and the National Parks and Wildlife Service. Table 2.2 lists the owners of the secondary data sources used as reference data, being the National Parks and Wildlife Service, Bord na Móna, various local authorities, the National Biodiversity Centre of Ireland, and the Wetland Survey Ireland.
17. The EPA assert its understanding that the bodies which supplied data to Tailte Éireann for the compilation of the NLC were also subject to the NMA. The EPA states that it is a term of the NMA that the licensee must secure the data from unauthorised access and protect the intellectual property rights of Tailte Éireann.
18. Although the EPA holds the environmental information requested, it holds this environmental information on the same basis as any other body which purchased the NLC on a commercial basis or which was subject to the NMA.
19. Under s. 17(2) of the Copyright and Related Rights Act 2000 (the 2000 Act), copyright subsists in paragraph (a) in “artistic works”, which under s. 2 of the same Act includes maps, regardless of their artistic quality, and also subsists in paragraph (d) in “original databases”. I am satisfied that Tailte Éireann owns the copyright on the NLC under these provisions. The appellant does not contest that copyright and sui generis database right applies to the NLC.
20. Section 4 of the Ordnance Survey Ireland Act 2001 outlines the relevant functions of Tailte Éireann, as originally assigned to the OSI:
“(1) The general function of OSI is to provide a national mapping service in the State. In this regard it shall operate in the public interest by creating and maintaining the definitive national mapping and related geographic records of the State.
(2) OSI’s functions shall include all such tasks as are necessary to fulfil its general function including, but without prejudice to the foregoing, the following: …
(i) to protect the Government copyright on OSI records, databases, products and published material including copyright on OSI records, databases, products and published material made prior to the establishment day.”
21. Tailte Éireann therefore has a statutory obligation to protect government copyright on its records, databases and products.
22. As per my decision in Right to Know CLG and Tailte Éireann (OCE-138355-H5S8J1), I find that release of the NLC under AIE would adversely affect the ability of Tailte Éireann to charge for the use of the NLC and also the Prime 2 database, due to the overlap in data. The ability to charge for use is an element of the rights that make up intellectual property rights. As the Intellectual Property Office of Ireland outlines in its guidance, among the advantages of intellectual property protection are that it can “turn your knowledge/idea into a tangible asset capable of assignment, transfer and licensing”, that it can “generate revenue and provide a return on investment in research and development” and “generate royalty income from licensing” (Intellectual Property Office of Ireland > Commercialise Your IP > Benefits of IP Protection) .
23. I am therefore satisfied that article 9(1)(d) of the AIE Regulations applies to the environmental information requested in this appeal.
Commercial or industrial confidentiality: Whether article 9(1)(c) of the AIE Regulations applies
24. To engage article 9(1)(c) of the AIE Regulations, a public authority must demonstrate that the disclosure of the information would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European Union law to protect a legitimate economic interest.
25. The EPA accesses its Tailte Éireann spatial data under the NMA. The NLC was released as a Tailte Éireann product made available to public sector organisations under the NMA and on a commercial basis to parties outside of the NMA.
26. The EPA supplied a copy of its own licence under NMA to this Office. Clause 2 of the NMA asserts the intellectual property rights of the government and the OSI (now Tailte Éireann); Clause 5 specifies the obligations of the EPA as a licensee, including a requirement to ensure that it fully protects the intellectual property rights in the data; and clause 8 allows for the termination of the agreement in the case of a breach.
27. The EPA refers to its understanding that organisations not under the NMA were required to contact Tailte Éireann for pricing information on the data, providing an email address for this purpose.
28. The appellant did not accept that Tailte Éireann could restrict the EPA’s access in the manner outlined in clause 8 of the NMA were it to release the environmental information to the appellant as the obligations of a public authority under the AIE Regulations could not be waived by contract.
29. It is sufficient to consider whether an exemption was correctly applied, rather than considering the consequences to the EPA if it were to breach the NMA. Although the EPA as a public authority may not contract out of its obligations under the AIE Regulations, the NMA can be understood as an exercise by Tailte Éireann of its intellectual property rights.
30. Tailte Éireann has a legitimate economic interest in protecting its intellectual property rights for reasons analysed in Right to Know CLG and Tailte Éireann (OCE-138355-H5S8J1). The NLC is held by the EPA subject to commercial confidentiality in terms provided in the NMA. I am therefore satisfied that article 9(1)(c) of the AIE Regulations applies to the environmental information requested in this appeal.
Public interest balancing test
31. The appellant argues that there is a strong public interest in the release of the NLC, as it would allow users to gain a far deeper understanding of Ireland’s environment. The appellant argues that public monies were used to create and validate this data, and that the NLC is of a higher quality than any publicly available environmental map.
32. The EPA accepted that there was a public interest in individuals being able to exercise their rights under the AIE Regulations to the greatest extent possible in order to access environmental information, and in environmental information being made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination.
33. However, it contended that there was a countervailing interest in the EPA not breaching the terms and conditions of data usage under the NMA, as such a breach could result in access to all Tailte Éireann data products being rescinded for the EPA, the implications of such would be to significantly reduce the environmental services that the EPA can provide to the public, and that, therefore, it was in the public interest for the EPA to use Tailte Éireann data in line with NMA and to refuse the request.
34. In Right to Know CLG and Tailte Éireann (OCE-138355-H5S8J1), the Commissioner affirmed a decision of Tailte Éireann to refuse access to the NLC under article 9(1)(d) of the AIE Regulations. The issues that were considered in my analysis of the public interest test in that case are also relevant here. As set out in that decision, the land cover data was identified and described as a high value dataset under EU Commission Implementing Regulation (EU) 2023/138, which will be applicable from June 2024. This will bring the NLC under the remit of the Open Data Directive. Through this legislation, Tailte Éireann have been provided with a transition period with the purpose of allowing it to adjust its practises, including its business model, to prepare data for availability under the Open Data Directive. I find that it would be inappropriate for me to ignore this transition period and direct release of this information at this point. I therefore find that the interest in refusal outweighs the public interest in disclosure of the requested information at this time.
35. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the EPA’s internal review decision to refuse access to the requested information under article 9(1)(c) and article 9(1)(d) of the AIE Regulations.
36. 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.
Julie O’Leary
On behalf of the Commissioner for Environmental Information