Decision
Mr Ken Foxe and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136873-N6D0Z3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-136873-N6D0Z3
Published on
Whether information referring or relating to an outbreak of salmonella at number of farms in the border region is “environmental information” within the meaning of article 3(1) of the AIE Regulations
29 May 2024
1. On 31 January 2023, the appellant wrote to the Department of Agriculture, Food and the Marine (the Department) requesting that the following under the AIE Regulations:
“copies of any records held referring or relating to the discovery of salmonella at a number of farms in the border region. For avoidance of doubt, issues relating to the food chain are directly specified in the regulations where they reference:
"(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);"
I would prefer to receive this information electronically, ideally in its original electronic format.”
2. The Department responded to the appellant on 24 February 2023, refusing access to the information on the grounds that it did not believe the request could be reasonably “[…] regarded as a request for environmental information.” The Department noted that the appellant had cited paragraph (f) of the definition of environmental information in Article 3(1). However, it argued that “[…] information on the state of human health and safety or contamination of the food chain is only environmental information if those matters have been impacted by environmental factors.”
3. The Department went on to state that it was refusing access “to the information sought on the basis that such information is not environmental information because the salmonella detected on farms did not occur and was not affected by the state of the elements of the environment referred to in paragraph (a) of the definition of environmental information contained in the AIE Regulations or, through those elements, by any of the matters referred to in paragraphs (b) and (c) of the definition of environmental information contained in the AIE Regulations”
4. On 24 February 2023, the appellant sought an internal review of the Department’s decision.
5. The Department issued its internal review decision on 15 March 2023, and affirmed its original decision to refuse the request under article 3(1) of the AIE Regulations, using almost identical wording to the original decision.
6. The appellant submitted an appeal to this Office on 27 March 2023.
7. I am directed by the Commissioner for Environmental Information to complete a review under article 12(5) of the Regulations. In doing so, I have had regard to submissions made by the appellant and the Department in this matter. I also 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’);
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• the judgments of the Superior Courts in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ);
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB and RTÉ; and
• the decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), and C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig).
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
10. Accordingly, I am satisfied that the scope of this review is limited to the question as to whether the Department was justified in refusing access to relevant records on the basis that they do not constitute “environmental information” within the definition provided at article 3(1) of the AIE Regulations.
11. It is clear from the comments of the Court of Appeal in Redmond, at paragraph 51, that the nature of a review by my Office is inquisitorial rather than adversarial in nature. The extent of the inquiry is determined by me and not the parties to the appeal.
12. In light of the guidance of the High Court in RTÉ, it is my view that I should decide on a case by case basis whether it is essential for me to review the entire content of the requested information before determining whether it is environmental information. In many cases, the content of the requested information will be highly relevant to the determination. This is one of the reasons why, in most cases, I require the public authority to make the requested information available to my Office for the purposes of my review. In other cases, the information requested will not itself be intrinsically environmental and the question will be whether the information requested is information ‘on’ a different measure or activity which is likely to affect the environment. In such cases, examination of the entire content of the requested information may be unnecessary. I am satisfied that this review falls into the latter category of cases and that I was able to carry out my review without reviewing the requested information.
Definition of Environmental Information
13. The AIE Regulations transpose the AIE Directive at national level. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information and enable an informed public to participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EC, the previous AIE Directive.
14. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with article 2(1) of the Directive, article 3(1) of the AIE Regulations provides that "environmental information" means:
"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 including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms 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 within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c) ".
15. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the above definition. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
16. In his decision in RTÉ, Barrett J expressly endorses the approach set out in Henney to determine the “information on” element of the definition (see RTÉ, paragraph 52). This involves identifying the relevant element of the definition to which the information in question relates. In this case, the information requested is “records referring or relating to the discovery of salmonella at a number of farms in the border region”. As noted above, the Department contends that this information is not “environmental information”.
Positions of the Parties
17. In his appeal to this Office, the appellant stated that the information he is seeking “is clearly environmental in nature.” In a very brief submission to this Office, the appellant contended that, in relation to the salmonella outbreak at issue, the Minister for Agriculture, Food and the Marine, Mr. Charlie McConalogue, had been quoted in the Irish Independent newspaper as saying:
“We are carrying out further assessments all the time. The veterinary team are looking to get to the source of the issue and are taking all precautionary steps to make sure there isn’t a threat to public health and that food is safe.”
18. In its submission to this Office, the Department focused on the appellant’s reference in his original request to paragraph (f) of the definition of environmental information in the AIE Regulations. It contended that, for the purposes of paragraph (f), information on the state of human health and safety or contamination of the food chain is only environmental information if those matters (i.e. human health and safety or contamination of the food chain) have or may be affected by the state of the elements of the environment referred to in paragraph (a) of the definition or, through those elements, by any of the matters referred to in paragraphs (b) and (c) of the definition.
19. The Department went on to restate the elements of the environment as set out at paragraph (a). Paragraph (a) of the definition provides that environmental information means:
“[…] 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 including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements.”
20. The Department argued that no reference is made in paragraph (a) to infectious diseases such as salmonella and contended that, even if salmonella has the potential to affect the state of human health and safety or have potential to impact on the food chain, the fact that it is an infectious disease as distinct from an element of the environment listed in paragraph (a) means that information relating to a salmonella outbreak is not environmental information for the purpose of the AIE Regulations.
21. The Department referred to the section of the Minister’s Guidance concerning paragraph (f) and noted it states the following:
“Paragraph (f) is important in that it extends the definition of “environmental information” to embrace human health, conditions of human life and certain aspects of the built environment in so far as they may be affected by the state of the different environmental media or, indirectly, through factors which affect those media. Thus, for example, where human health is affected by environmental pollution, information will be accessible under the AIE Regulations not only in relation to the pollutant/s and their environmental impact but also on its/their impact on human health (to the extent that these impacts are attributable to the pollutant/s). Similar considerations apply to social conditions and to certain built structures etc.”
22. The Department argued that there was nothing in the AIE Directive, the AIE Regulations or the Minister’s Guidance to suggest that “[…] as a result of paragraph (f) of the definition of environmental information it would be legally necessary, appropriate or desirable to equate an infectious disease with an environmental pollutant for the purposes of determining an AIE request and the Department did not engage in such an exercise for the purpose of replying to the current request.”
23. The Department went on to argue that even if a salmonella outbreak could be equated with an environmental pollutant for the purposes of AIE, it was satisfied that the elements of the environment as set out in paragraph (a) can be ruled out as the source of the outbreak as these elements would not be capable of spreading salmonella over the distances involved.
The Subject Matter of the Information at Issue
24. Although it has not been necessary in this review for me to examine the information at issue, it is clear from the wording of the appellant’s request that it consists of any records held by the Department referring or relating to the discovery of salmonella at a number of farms in the border region.
25. The Health Protection Surveillance Centre (the HPSC) is part of the Health Service Executive (the HSE), and is Ireland’s “specialist service for the surveillance of communicable diseases”. I am satisfied that the HPSC is a reliable authority on the nature of salmonella.
26. The HPSC has produced a factsheet on salmonella on its’ website, which at the time of this decision had last been updated in February 2023. I have summarised the relevant points from that factsheet immediately below:
• Salmonella is a group of bacteria which cause salmonellosis, a common infection of the gastrointestinal tract.
• Salmonella live naturally in the intestinal tracts of humans and other animals, especially birds. Salmonella are usually passed to humans through the consumption of food contaminated with animal faeces, and contaminated foods are often of animal origin, such as poultry, milk, eggs or beef. Salmonella can also contaminate food if infected food handlers fail to adequately wash their hands after using the bathroom.
• Salmonellosis, the infection caused by salmonella, leads to diarrhoea, headaches, fever and stomach cramps in the majority of people. The infection usually develops within 6-72 hours of infection and lasts between 4 to 7 days. Although most people recover without treatment, symptoms can occasionally be severe enough to warrant hospital admission, and severe illness is more likely in the elderly, infants, and those with impaired immune systems.
• All poultry farms in Ireland have been tested and monitored for salmonella for the past number of years. Any flocks found harbouring a common type of salmonella, salmonella enteritidis, are slaughtered.
27. Although the HPSC notes that there is a distinction between salmonella as a group of bacteria and salmonellosis as an infection caused by that group of bacteria, the term salmonella appears to be commonly used to refer to both the group of bacteria and the infection. Indeed, the Cambridge English Dictionary includes two definitions for the noun “salmonella”. It defines it as:
• a type of bacteria that exists in several forms, some of which live in food and make the people who eat it ill, and;
• the illness caused by this bacteria.
28. The Cambridge English Dictionary also defines the term “bacteria” as “very small organisms that are found everywhere and are the cause of many diseases”.
29. Having regard to the factsheet on salmonella prepared by the HPSC, and the definition of the words salmonella and bacteria in the Cambridge English Dictionary, it is clear that the term salmonella is used to refer to both the group of bacteria of that name, and the infection caused by that group of bacteria. It is also clear that salmonella, as a group of bacteria that live naturally in the intestinal tracts of humans and animals, are organisms.
30. The appellant referred to paragraph (f) of the definition of environmental information in his request to the Department, and the Department and the appellant have naturally focused their arguments on that paragraph and its applicability in this case. However, while paragraph (f) is indeed relevant to this case, I consider that paragraphs (a) and (b) of the definition of environmental information are also pertinent to this review. I will therefore consider paragraphs (a) and (b) before turning to paragraph (f).
Paragraph (a)
31. Paragraph (a) of article 3(1) provides that “environmental information” means:
“any information in written, visual, aural, electronic or any other material form on the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements.”
32. As set out above, salmonella are a naturally occurring group of organisms, specifically bacteria, that live in the intestinal tracts of both humans and animals, particularly birds, and that can cause an infection of that same name, also referred to as salmonellosis.
33. It is clear to me from the explicit inclusion of genetically modified organisms as an example of “biological diversity and its components”, and therefore as an example of elements of the environment in paragraph (a), that naturally occurring/non-genetically modified organisms are already captured by the term “biological diversity and its components” and are therefore themselves elements of the environment.
34. Although the Department’s arguments in this case have been primarily framed through the lens of paragraph (f) of the definition, it is worth considering their applicability to paragraph (a), given paragraph (f) makes explicit reference to the state of the elements of the environment set out in paragraph (a). The Department’s arguments have hinged on the status of salmonellosis as an infectious disease, and its position that an infectious disease should not be equated with an environmental pollutant.
35. In relation to paragraph (a) specifically, the Department noted that no reference is made in to infectious diseases and argued that there is therefore a distinction between salmonellosis and the elements of the environment listed in that paragraph. In the context of paragraph (f), the Department also stated it was satisfied that those same elements could be “ruled out as the source of the salmonella outbreak as these elements would not be capable of spreading Salmonella over the distances involved.”
36. I consider that the Department’s arguments fail to address the fact that salmonellosis is an infection affecting humans and animals that can only be caused by salmonella bacteria. By narrowly focusing on the infection rather than engaging with the nature and role of the bacteria which causes the infection, the Department has not properly considered whether the information at issue falls within the definition at paragraph (a).
37. This is demonstrated in particular by the Department’s contention that an infectious disease should not be equated with an environmental pollutant, and that the elements listed in paragraph (a) would not be capable of spreading salmonella “over the distances involved”. Again, this position fails to take into account the fact that salmonellosis, the infection, can only be caused by salmonella, the bacteria. The bacteria, as organisms which are components of biological diversity, are clearly elements of the environment. Any outbreak of the disease means that the bacteria were, at some point, present. The bacteria and the infection it causes cannot be separated from one another in this regard.
38. Accordingly, I am satisfied that that information on a salmonella outbreak at several farms in the border region concerns and contains information on the state of the elements of the environment and interactions between those elements, namely the group of bacteria organisms known as salmonella, which cause the infection known as salmonellosis, and the humans and animals who may carry, transmit and be infected by that bacteria. I find therefore that the information sought is captured by paragraph (a) of the definition of environmental information as set out in article 3(1) of the AIE Regulations.
Paragraph (b)
39. Paragraph (b) of article 3(1) provides that “environmental information” means any information in written, visual, aural, electronic or any other material form on 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.
40. As set out above, salmonella bacteria naturally reside in the intestinal tracts of humans and animals, especially birds, and cause an infection named salmonellosis. The HSPC’s factsheet states that salmonella bacteria are generally passed to humans through the consumption of food contaminated with animal faeces.
41. Animal faeces containing salmonella bacteria is clearly captured by the terms substances and waste in paragraph (b). I also consider that salmonella bacteria are themselves captured by the terms substances and waste contained in that part of the definition, in that they are released into the environment by animals.
42. Further, animal faeces carrying salmonella bacteria, and salmonella bacteria themselves, evidently affect or are likely to affect the elements of the environment, in that they may be transmitted to components of biological diversity (humans and animals) and infect those components.
43. As the appellant has requested information relating to the discovery of salmonella on farms, I find that the information sought is also captured by paragraph (b) of the definition of environmental information as set out in article 3(1) of the AIE Regulations.
Paragraph (f)
44. Paragraph (f) of article 3(1) provides that “environmental information” means any information on the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c) ".
45. I have already found that the information sought in this case is captured by both paragraphs (a) and (b) of the definition. Salmonella bacteria are an element of the environment within the meaning of paragraph (a) and are generally passed to humans through the consumption of food contaminated with animal faeces, which is clearly a substance within the meaning of paragraph (b). Furthermore, salmonella bacteria themselves are captured by the terms substances and waste in paragraph (b).
46. It is abundantly clear to me that both the state of human health and the contamination of the food chain are clearly affected by salmonella bacteria, as those bacteria cause salmonellosis infection in humans, and are passed to humans through the consumption of food contaminated by a substance that affects or is likely to affect the environment, animal faeces.
47. Based on the above, I find that the information sought is also captured by paragraph (f) of the definition of environmental information as set out in article 3(1) of the AIE Regulations.
Conclusion
48. I find that the information requested by the appellant in this case clearly and unambiguously falls within the definitions of “environmental information” contained in paragraphs (a), (b), and (f) of article 3(1) of the AIE Regulations. On that basis, and in circumstances where it is unclear whether the relevant information coming within the scope of the appellant’s request has been properly identified, I am remitting the matter to the Department for further consideration in accordance with the provisions of the AIE Regulations.
49. Finally, I wish to briefly comment on the Department’s approach in this case. It is disappointing that the Department took the position that the information sought in this case was not environmental information. It seems to me that information on an outbreak of a bacterial disease in farms involved in the production of food is precisely the type of environmental information the AIE Directive and the AIE Regulations were designed to capture. Furthermore, I consider it a poor use of this Office’s resources to have to make a decision on a question the answer to which is so self-evident. It would have been a more effective use of time and resources for the requestor, the Department and this Office if the Department had considered the substance of the request and made a decision on the release or otherwise of the information sought.
50. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the Department’s internal review decision in this case and I direct it to provide the appellant with a new internal review decision in respect of the request.
51. 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