Decision
Right to Know and Environmental Protection Agency
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144247-Y3N2P4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144247-Y3N2P4
Published on
Whether the information requested is held by, or for the EPA in accordance with article 7(1) of the AIE Regulations and whether the EPA conducted adequate searches such as to identify the information requested, in accordance with the implicit requirement of article 7(5), prior to refusing the information on the basis that it was not held by, or for it.
30 October 2024
1. The appeal relates to a request for information submitted to the EPA, on 14 September 2023, textually as follows:
“the locations of the 3000 farms affected by the lower nitrates derogation amount on the basis that they are causing emissions into the environment
“Please note that the personal data exception does not apply for a request that relates to emissions into the environment
“RTK would like to receive the data in its original format as received by EPA from DAFM”
2. The EPA responded to the request on 13 October 2023, refusing the request on the basis that “it had been unable to locate any records relevant to [the] request.”
3. In an internal review request made on 18 October 2023 the appellant noted that the EPA has a data sharing agreement with the Department of Agriculture, Food and the Marine (DAFM), suggested“that information on derogation farms and their locations is passed to [the] EPA on a regular basis”, cited the reference to a previous AIE request received and determined by the EPA (ref. “OEA AIE 2023 09”) and included a screenshot of the extract of a table with references to“nitrates” and the name of an official at DAFM with an email address denoting affiliation to that Department’s nitrates division. In the course of review of this appeal, it was discovered that this was an extract from the aforementioned data sharing agreement, which is publicly available online (see paragraph 19 below).
4. By letter dated 16 November 2023, the EPA issued its internal review decision, affirming the original decision to refuse access to the information requested as“no records could be located relevant to [the] request.” The letter added that the information was being refused under article 7(5) of the AIE Regulations. In respect of the data sharing agreement to which allusion had been made in the internal review request, the letter noted that“the information set out in the data sharing agreement that you requested was not required to produce the map in question, as the maps are based on water quality monitoring and not based on the location of the farms you refer to. Therefore, such information was not sought by the EPA in the preparation of the map.” The nature and relevance of this map will become clear in the course of this decision. The letter goes on to state that“DAFM are the competent body for derogations and maintain the most up-to-date list of derogation farms and are the appropriate body this query should be directed to.”
5. The appellant brought this appeal to this Office on 29 November 2023 but with no explanation as to the reason for doing so.
6. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal, which I have now completed under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
• 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’);
7. What follows does not make findings on each and every argument advanced but all relevant points have been considered.
8. This appeal is concerned with whether the information requested is held by, or for the EPA in accordance with article 7(1) of the AIE Regulations and whether the EPA has carried out adequate searches such as to identify and locate the information requested, in accordance with the implicit requirement of article 7(5) of the AIE Regulations so to do, prior to refusing to release it on the basis that it is not held by, or for it.
9. The request in this case is for the locations of 3,000 farms“affected by the lower nitrates derogation”. This derogation refers to the exemption to abide by certain legal obligations in regard to the use of nitrates on land by farmers, allowing these the use of amounts greater than those prescribed in European and Irish legislation, subject to conditions. The derogation, emanating from a decision of the European Commission ( Decision (EU) 2022/696 ), finds expression in Statutory Instrument No. 113 of 2022 (as amended)
10. A review of this appeal has required the examination of two matters, namely, (i) whether the EPA has conducted adequate searches for the information such as to fulfil its requirement to comply with article 7(5) of the AIE Regulations and (ii) whether it can be said that the information requested is held by, or for the EPA under the data sharing agreement that exists between the EPA and DAFM.
11. Article 7(1) of the AIE Regulations requires a public authority to“make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.”
12. In its internal review request, the appellant interprets that, arising from a data sharing agreement between the EPA and DAFM,“information on derogation farms and their locations is passed to [the] EPA on a regular basis”.
13. In response, the EPA implicitly affirms the existence of such a data sharing agreement by stating that the information“set out in the data sharing agreement that you requested was not required” by it to produce a map that it refers to in its internal review decision, a map whose creation by the EPA the appellant appears to consider to have required the information requested by it. The EPA has stated that the information that formed the basis of the map is that pertaining to“water quality monitoring” and not“the location of the farms” requested by the appellant.
14. In submissions to this Office, the content of which was conveyed substantially to the appellant for observations, the EPA has made the following points:
a. The EPA has not received the information requested from DAFM and states“categorically that it does not hold the data requested and therefore cannot provide it to the requester.” The data is held by DAFM and the requester was advised by the EPA to direct their request to DAFM.
b. DAFM is the competent body for the Nitrates Directive derogation and maintains the list of derogation farms. The EPA is aware that the dataset being sought was created by DAFM as it is the relevant competent body and was legislatively required to identify and notify the farmers potentially impacted by the change in the derogation limit. In 2023 the EPA was tasked with producing a map that showed the areas where water quality did not meet specific criteria set by the European Commission. This map was included in a report (page 27), the Water quality monitoring report on nitrogen and phosphorous concentrations in Irish waters 2022 . The report and a downloadable digital map showing the areas where water quality did not meet criteria set by the European Commission were published by the EPA on its website on 30 June 2023. This information was based on water quality monitoring data and not on the location of derogation farms. The map had been sent to DAFM on 20 June 2023. Thereafter DAFM used the map in the report to identify the relevant farmers operating under the nitrates derogation in the areas with water quality issues who would be subject to the lower limit.
c. There are several thousand derogation farm locations in Ireland and information on these farms is held by DAFM. For the avoidance of doubt, the map (entitled National distribution of derogation herds in 2022 [Source: Department of Agriculture, Food and the Marine]) on page 3 of the report, Water quality monitoring report on nitrogen and phosphorous concentrations in Irish waters 2022 includes all derogation farm locations in the country. This map was created by DAFM and provided to the EPA by DAFM as a pdf (image) for inclusion in this report.
d. The EPA’s understanding is that, following its publication on 30 June 2023 of the water quality report, Water quality monitoring report on nitrogen and phosphorous concentrations in Irish waters 2022 and the accompanying map that showed the areas where water quality did not meet criteria set by the European Commission at the end of June 2023, DAFM then subsequently carried out its own internal spatial analysis to determine which derogation farms were in the areas where water quality did not meet criteria set by the European Commission, i.e., comparing its data on all derogation farm locations with the map showing which areas did not meet the water quality criteria set out by the Commission published by the EPA in June 2023. The EPA was not involved in this analysis. DAFM subsequently publicised in several news articles in September 2023 that there were roughly 3,000 derogation farms in the areas where water quality did not meet criteria set by the European Commission.
e. The EPA has a data sharing agreement with DAFM, and periodically data is shared under this agreement. However, data on the“…the locations of the 3000 farms affected by the lower nitrates derogation amount…” (the request for information in this case) is not part of the data sharing agreement and the EPA confirms that the data sought by the requester was never sought by the EPA under this data sharing agreement and it has not been shared by DAFM with the EPA.
f. If the EPA had the records in question but was not in a position to release them under the provisions of the legislation this would have been communicated to the requester. The EPA does not hold the record requested, and the requester should request the data from DAFM.
15. In cases where public authorities assert that requested information does not exist or is not held by them, a prerequisite to show compliance with articles 7(1) and 7(5) of the AIE Regulations is that they carry out, and demonstrate they have carried out, adequate searches for the requested information.
16. In this vein, and in addition to the submissions made above, this Office posed a number of detailed questions to the EPA to establish the nature of the searches it had carried out for the information requested and the detail contained in its data retention and records management policies, as follows:
a. In regard to the guidelines, practice, procedures and arrangements in place in relation to the storage, archiving, retention and destruction of the type of information sought in this request, the EPA responded by saying:
“Not applicable as the EPA does not hold and has never held the type of information sought.”
b. The EPA was asked to give an outline of exactly which areas within the EPA were searched for the information requested. It responded in the following terms:
“To determine who may have relevant records in relation to the request, the request was forwarded to those EPA staff who engaged with DAFM on the production of the EPA’s annual water quality report relating to the derogation. In addition, those EPA staff involved in the production of the map “Results of the Commissioners Water Quality Review Criteria” on page 27 of the report entitled ‘Water quality monitoring report on nitrogen and phosphorus concentrations in Irish waters 2022’ showing the areas that did not meet the water quality criteria set out by the Commission itself, were asked to check for records. All of these staff responded by email indicating they did not have any records.”
c. The EPA was requested to give a description of searches conducted including details of the files searched and the search methods used. The EPA gave the following response:
“Searches were conducted for electronic records in the range from June 2023 to the date of the request in September 2023. The search included checking files shared by DAFM staff and correspondence with DAFM staff. Key word searches included “derogation” and “farm location”.
d. The EPA was further asked about the possibility that the information requested could be in an area, place or location other than that in which it would be expected to be located. The EPA explained as follows:
“Checks were made to determine if there had been any information shared on the ‘locations of the 3000 farms affected by the lower nitrates derogation amount’ under the EPA’s Data Sharing Agreement with DAFM. Such data are not specified in the EPA-DAFM Data Sharing Agreement and have not been shared.”
e. Lastly, the EPA was asked to consider whether the information requested may have been misfiled or misplaced and to describe searches carried out to discover whether this might have happened. The EPA responded as follows:
“Not applicable. The EPA is confident that it does not hold and never held the information requested. There is no reason why DAFM would have shared this data with the EPA. Indeed, it was DAFM who subsequently used the EPA’s Water Quality Map (entitled: ‘Results of the Commissioners Water Quality Review Criteria’) on page 27 of the report entitled: ‘Water quality monitoring report on nitrogen and phosphorus concentrations in Irish waters 2022’ to carry out their spatial analysis which then resulted in DAFM publicising the location of the 3,000 derogation farms. DAFM are the competent authority who needed to identify and communicate with farmers who could be impacted by the changes to the derogation – not the EPA. The EPA did not request and DAFM had no reason to share that data with the EPA.
“Outside of checks with staff directly involved with the subject matter and those involved with the wider Data Sharing Agreement with DAFM, no additional searches were carried out by the EPA.”
17. Based on the above, I am satisfied that the EPA has carried out adequate searches, does not hold the information requested and was justified in refusing it under article 7(5) of the AIE Regulations.
18. The question necessarily arises, if the information is not “held by” the EPA in accordance with article 7(1) of the AIE Regulations, whether the information is held “for” it by DAFM by virtue of the data sharing agreement between the two public authorities. While the appellant did not make any written submissions in respect of this appeal, there was a suggestion by a representative of the appellant in a phone call to the investigator dealing with this case that this issue should be considered.
19. I have reviewed the data sharing agreement referred to by the appellant in the internal review request, which is available online here . I am satisfied firstly that the existence of a data sharing agreement is not evidence that any information listed therein has in fact been shared. Having regard to the submissions made by the EPA, as set out above, I am satisfied that the information relevant to this request has not been shared by DAFM with the EPA. These submissions were provided to the appellant who did not provide any response contradicting what was contained therein.
20. Secondly, I have considered whether the existence of a data sharing agreement means that any information that may be shared under this agreement is in fact held by DAFM on behalf of the EPA or whether there would be any obligation on the EPA to request the relevant information from DAFM in responding to this request. Article 3(1) provides that environmental information held for a public authority“means environmental information that is physically held by a natural or legal person on behalf of that authority.” For clarity, any references I make in this decision to information“in the possession of” should be taken as meaning“physically held by”.
21. Both the Aarhus Guide and the preparatory documents for the AIE Directive, available here, provide assistance in interpreting the term “on behalf of”. The Aarhus Guide states: “[i]n practice, for their own convenience, public authorities do not always keep physical possession of information that they are entitled to have under their national law. For example, records that the authority has the right to hold may be left on the premises of a regulated facility. This information can be said to be ‘effectively’ held by the public authority.”
22. Similarly, the European Commission's First Proposal for the AIE Directive defined information held for a public authority as meaning “environmental information which is held by a legal or natural person on behalf of a public authority under arrangements made between that authority and that person”. The Proposal explained:
“In many cases, experience shows that environmental information which public authorities are entitled to hold on their own account is kept physically on their behalf by other entities. Access to such information may be requested by the public. Public authorities should not be entitled to refuse access to this information simply on grounds that it is not physically in their possession. The proposal ensures that, if such information exists and is kept for the public authority concerned under arrangements with another person or body, it should be made available by the public authority in the normal way.”
23. The proposal was later amended by the European Council to its current wording. The European Council explained that“information held” means“physically held” and deleted the First Proposal's limitative requirement for an arrangement between the holder and an authority. The European Commission noted that by the European Council's amendments the definition was simplified, but the"underlying principle of the definition in the Commission proposal is however ensured".
24. These sources indicate that the purpose of the provision is to ensure that public authorities cannot avoid their obligations under the AIE Directive by simply outsourcing the storage of that information to a third party.
25. I am satisfied that the above does not encompass situations where a data sharing agreement exists between public authorities, and that, simply because there is the possibility of the data being shared between the EPA and DAFM, this does not mean that the information sought is held by or for the EPA within the meaning of the AIE Regulations. The situation dealt with in this appeal is quite different to situations where a public authority has outsourced the storage of information to a third party. Accordingly, there is no obligation on the EPA to seek the relevant information from DAFM when responding to this request.
26. From all the above, I am of the view that it is quite clear that the information relating to derogation farms, that is, the information requested by the appellant, is not held by the EPA, is not held by DAFM “for” or on behalf of the EPA, and that it is held, as stated in all of EPA’s correspondence to date, by DAFM. It is for this reason that the EPA advised the appellant to direct its request for information to DAFM.
27. I will make the final point that, as required by a public authority which does not hold information requested but which is aware of another public authority which does hold it, the EPA informed the appellant that DAFM held the information requested and advised it to direct its request to that public authority. This is in compliance with article 7(6) of the AIE Regulations, which gives a choice to public authorities in such a situation either to“(a) transfer the request to the other public authority and inform the applicant accordingly, or (b) inform the applicant of the public authority to whom it believes the request should be directed.”
28. I have given careful consideration to the appellant’s inference that the information requested is held by or for the EPA and also to the detailed reasons given by the public authority as to why that is not the case and to its detailed description of efforts to identify and locate the information requested by way of the searches it carried out. I am satisfied that the information requested is not held by, or for the EPA and that the EPA has conducted adequate searches such as to rule out the possibility that it does, in fact, hold it.
29. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I affirm the EPA’s decision to refuse the information requested on the basis that it is not held by, or for it, in accordance with article 7(5) of the AIE Regulations.
30. 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