Decision
Mr Ken Foxe and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-116966-W8P0M5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-116966-W8P0M5
Published on
Whether Coillte is entitled to refuse access to information requested by the appellant on the grounds of articles 8(a)(i), 8(a)(ii), 8(a)(iv), 9(1)(b), 9(1)(c) and/or 9(2)(d) of the AIE Regulations
1. In March 2019, Coillte entered into contracts with Planree Limited (Planree) for the purchase of Meenbog Windfarm in County Donegal. As part of these contracts, Coillte sold a number of turbine base areas to Planree and agreed to provide ancillary rights of way and wayleaves over lands which remained in Coillte’s ownership in order to facilitate Planree’s access to, and maintenance of, the Meenbog Windfarm. Planree in turn provided certain covenants to Coillte and agreed to cooperate with certain requests by Coillte with regard to forestry and felling and to safety and operational issues in respect of Coillte’s lands.
2. In November 2020, a peat slide occurred on the windfarm. This was followed by investigations and interventions by a number of agencies on both sides of the border with Northern Ireland including Donegal County Council (the Council), the Environmental Protection Agency (the EPA), the National Parks and Wildlife Service (the NPWS), the Loughs Agency, the Rivers Agency, the Northern Ireland Environmental Agency (NIEA), Northern Ireland Water (NI Water) and Derry and Strabane District Council. Coillte submits that the peat slide appears to have arisen as a result of construction related to the windfarm. This view appears to be supported by the fact that, in June 2022, the developers of the windfarm, Planree Limited, pled guilty in the District Court to a charge that it:
“Did…cause deleterious matter to fall into waters, to with the Shruhangarve Burn and/or Mournebeg river in the townland of Meenbog, contrary to the form of section 17(1) of the Fisheries (Consolidation) Act 1959 as extended by section 10 of the Foyle Fisheries (Amendment) Act 1961”.
3. On 24 August 2021, the appellant wrote to Coillte requesting the following:
4. Coillte responded on 22 October 2021. It provided the appellant with a Schedule of Records listing 52 documents which it considered to be within the scope of his request. It refused to provide access to all 52 documents. Documents 1 to 10, Document 14 and Documents 17 to 20 were refused on the basis of article 9(2)(d) of the AIE Regulations. Documents 11, 12, 15 and 16 were refused relying on both articles 8(a)(i) and 9(2)(d) of the AIE Regulations. Document 13 was refused on the basis of articles 8(a)(i), 9(1)(c) and 9(2)(d) of the Regulations. Documents 20 to 30 and Documents 51 and 52 were refused relying on articles 8(a)(iv), 9(1)(b) and 9(1)(c). Articles 8(a)(i), 8(a)(ii), 8(a)(iv), 9(1)(b) and 9(2)(c) were invoked as grounds for refusal of Documents 31 to 37. Documents 38 to 50 were refused on the basis of articles 8(a)(i), 8(a)(iv), 9(1)(b) and 9(1)(c). The original decision by Coillte also indicated that “were it not for the applicability of these exclusionary grounds, and their suggestion that it is appropriate to withhold documents in their entirety, I might have applied article 9(2)[(a)] which allows a public authority to refuse a request which is manifestly unreasonable having regard to the volume or range of information sought”.
5. The appellant sought an internal review of the decision on 26 October 2021.
6. Coillte provided the outcome of its internal review on 26 November 2021 in which it essentially reiterated the original decision.
7. The appellant appealed to my Office on 7 December 2021.
8. 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 Coillte. I have also considered the submissions of Planree Limited, Donegal County Council, the Environmental Protection Agency, the National Parks & Wildlife Service, the Loughs Agency and the Rivers Agency of Northern Ireland, Northern Ireland Water, the Northern Ireland Environmental Agency and Derry & Strabane District Council. I have also examined the contents of the information 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.
9. My review in this case is concerned with whether Coillte is entitled to refuse information within the scope of the appellant’s request under articles 8(a)(i), 8(a)(ii), 8(a)(iv), 9(1)(b), 9(1)(c) and/or 9(2)(d).
10. Coillte has confirmed that it is not seeking to rely on article 9(2)(a) and it is therefore not necessary for me to include that provision within the scope of this appeal.
11. During the course of the appeal, the Investigator identified further information which she considered to be within the scope of the request. Coillte did not agree but argued, without prejudice to that position, that it considered article 8(a)(ii) to provide grounds for refusal of that information in any event. I will therefore also consider the question of whether that further information falls within the scope of the appellant’s request.
12. Finally, I will consider whether the request can be considered to be one which relates to information on emissions into the environment such that article 10(1) of the AIE Regulations applies. This issue was not raised by any of the parties but I consider it to be within my jurisdiction to address given that it impacts on the applicability of articles 8 and 9(1)(c) of the AIE Regulations, which have been raised by Coillte as grounds for refusal. The decision of the Court of Appeal in Redmond also makes it clear that proceedings before me “are inquisitorial rather than adversarial in character” and “the extent of the inquiry is determined by the Commissioner, not by the parties” (see paragraph 51).
13. Before setting out the substantive findings of this review, I wish to apologise for the delays experienced in the resolution of this appeal. This was due in part to resource constraints =. It was also due however to the complexity of the investigation which involved seeking a number of submissions on a variety of complex issues and from a significant number of parties, including nine third parties.
14. It should also 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.This means that the detail that I can give about the content of the information and the extent to which I can describe certain matters in my analysis is limited.
15. There are a number of issues which arise for consideration as part of this appeal:
(i) The extent of the information which should be considered to come within the scope of the request;
(ii) Whether the request relates to information on emissions into the environment such that article 10(1) applies;
(ii) Whether article 8(a)(i) provides grounds for refusal of Documents 11 to 13, 15, 16, and/or 31 to 50;
(iv) Whether article 8(a)(ii) provides grounds for refusal of Documents 31 to 37 and, if applicable, the additional information referred to at (i) above;
(v) Whether article 8(a)(iv) provides grounds for refusal of Documents 11 to 17 and/or 21 to 52;
(vi) Whether article 9(1)(b) provides grounds for refusal of Documents 21 to 52;
(vii) Whether article 9(1)(c) provides grounds for refusal of Documents 13 and 21 to 52;
(viii) Whether article 9(2)(d) provides grounds for refusal of Documents 1 to 20.
16. I will consider each of these issues in turn.
Scope of Request
17. As noted above, the appellant’s request was made in August 2021 and sought “records held in the email account of the chief executive referring or relating to the Meenbog landslide…from 1 November 2020 to 31 December 2021” along with “reports, audits, submissions, memos or other such overview/discussion documents held by Coillte relating to the landslide” and “information/papers prepared for the board of Coillte relating to the landslide”.
18. The first question to be addressed is the extent of the information held by Coillte within the scope of that request. As previously noted, Coillte identified 52 documents which it considered to be within scope. During the course of the investigation, the Investigator identified further information which she considered to be within the scope of the request. Coillte dispute that this information comes within scope. I will address this issue first before considering whether the request can be said to be one which relates to emissions into the environment.
19. While reviewing the information provided to this Office by Coillte in the course of her investigation, the Investigator noted reference to correspondence from Planree to Donegal County Council in December 2020, following the peat slide of November 2020 (the December 2020 Correspondence). She wrote to Coillte requesting a copy of that correspondence. Coillte provided a copy however it submitted that the December 2020 Correspondence did not relate to the peat slide but rather to alleged unauthorised development for planning purposes and therefore did not come within the scope of the appellant’s request. Having considered the December 2020 Correspondence, I am satisfied that it does come within the scope of the request and can be considered a “submission… held by Coillte relating to the landslide”. The December 2020 Correspondence was sent on behalf of Planree to the Council in response to a warning letter issued by the Council to Planree on 23 November 2020, after the peat slide had occurred, under section 152 of the Planning and Development Act. It discusses a potential link between alleged non-compliance with a condition of the planning permission granted to Planree and the occurrence of the peat slide and therefore is related to the landslide. I am not making any finding as to whether such link in fact existed, whether any non-compliance with planning occurred or whether any potential non-compliance was a causative factor. My finding is that the fact a potential link was identified in the correspondence is sufficient to bring the December 2020 Correspondence within the scope of information “relating to the landslide” which is a broad concept. I will therefore consider whether Coillte is entitled to withhold the December 2020 Correspondence as part of my review. Without prejudice to its position that the December 2020 Correspondence is out of scope, Coillte has submitted that it is entitled to rely on article 8(a)(ii) to refuse access to the Correspondence.
20. On the topic of scope, I also note that Documents 21 to 30, which are minutes of monthly meetings of Coillte’s Land Solution Division, contain references to the Meenbog incident along with other issues discussed at those meetings. I consider that only the references to the Meenbog incident are within the scope of the request and it is only those references which I am considering as part of my review in this case. For the avoidance of doubt, this means that even if I do not consider there to be grounds for refusal of the references to the Meenbog incident, the other information contained in those minutes can be removed as it does not fall within the scope of the request.
21. Coillte also argues that Documents 1 to 20 contain reference to other Board related matters and that Document 13 contains a description of the background sale of Meenbog which does not constitute environmental information relating to the peat slide at Meenbog and is therefore outside scope. It does not specify the “other Board related matters” in Documents 1 to 20 to which its submissions refer. There is one reference in Document 1 which may not relate to the landslide. However, it is high level and in circumstances where Coillte has not provided specific indications of the information it considers to be outside scope and where the AIE Directive and Regulations make it clear that their objective is to ensure the widest possible dissemination of environmental information, I consider that any lack of clarity should be resolved in the appellant’s favour, particularly since the information at issue is so high level that it is difficult to see how its inclusion within scope would give rise to any prejudice on Coillte’s part.
22. Document 2 discusses the Meenbog slide in particular, landslides in general and makes brief reference to another landslide. I consider the entirety of the document to come within the requests for “reports, audits, submissions, memos or other such overview/discussion documents held by Coillte relating to the landslide” and “information/papers prepared for the board of Coillte relating to the landslide”. I consider given the objective of the Directive and Regulations to ensure the widest possible dissemination of environmental information that the request should be interpreted broadly meaning the term “relates to” should include any item of potential relevance to the Meenbog landslide. That would include information in Document 2 relating to landslides generally but also information on the other landslide on the basis that it is potentially (albeit not definitely) of some relevance to the Meenbog incident - as both took place near or on lands owned by Coillte - and to Coillte’s environmental decision-making in response to landslides generally. The same can be said in my view for the information on the bog burst in Document 3, the other landslide in Document 4 and the brief discussion of those matters contained in Document 7. For the avoidance of doubt, I am not making or attempting to make any finding or insinuation that these landslides involved culpability or wrongdoing on Coillte’s, or any other entity’s, part but the purpose of the AIE Regulations is to provide members of the public with environmental information held by or for public authorities so that they are better placed to engage in informed debate around the decision-making and policies of those public authorities and, on that basis, I consider that excluding information about other landslides on the basis of a conclusion on my part that these do not “relate” to the Meenbog landslide would be to adopt an overly narrow interpretation of that term. This in turn would undermine the purpose of the Regulations and the Directive.
23. Document 5 consists of a list of questions put to Coillte by members of a Joint Oireachtas Committee. Only question 7 relates to Meenbog. Unlike the incidents involving landslides discussed above, I consider the topics raised by the remaining parliamentary questions to be too remote from the landslide at Meenbog to come within the scope of the appellant’s request. I therefore consider them outside the scope of the appeal. Document 6 consists of an email with a list of updates to be provided at a meeting of Coillte’s Board. Coillte has provided this Office with a redacted and an unredacted version of this document. I am satisfied that the agenda items redacted from the document can be considered outside the scope of the appellant’s request.
24. Document 8 contains reference to a commercial project as well as to the Meenbog incident and I consider references to the commercial project can be removed as they do not appear to me to bear any relation to the Meenbog incident and can therefore be considered out of scope. I do not consider there to be anything in Document 9 or 10 which requires removal on the basis that it is outside the scope of the request. I consider the same to be the case for Documents 11 and 12. However, the appellant has confirmed that he does not wish to be provided with personal information relating to the member of the public referenced in the email chains captured in those documents and these can therefore be considered outside the scope of his appeal.
25. With regard to Document 13, I do not agree with Coillte’s argument that the information on the background to its transfer of certain lands and ancillary rights at Meenbog is outside the scope of the appellant’s request as it provides relevant background detail in relation to the landslide itself. Document 13 consists of a briefing prepared for an officer of Coillte in response to the enquiries received from the member of public contained in Documents 11 and 12. It therefore falls squarely within the request for “information/papers prepared for the board of Coillte relating to the landslide”.
26. Document 14 consists of a cover email with an attachment of Agenda items for discussion between the Chair and the CEO. Coillte has provided this Office with a redacted and an unredacted version of this document. I am satisfied that the agenda items redacted from the document can be considered outside the scope of the appellant’s request.
27. Document 15 is a continuation of the chain of correspondence referred to in Documents 11 and 12. As with Documents 11 and 12 I consider it to be within scope in its entirety although the personal information of the member of the public who initiated the correspondence can be removed as per the appellant’s confirmation to this Office. The same considerations and conclusion apply to Document 16. I do not consider there to be anything in Documents 17 to 20 which requires removal as it all falls within the scope of the request.
Application of article 10(1)
28. The next question for me to consider is whether the request is one which “relates to information on emissions into the environment”. If so, article 10(1) of the AIE Regulations provides that articles 8 and 9(1)(c) may not be relied on as grounds for refusal of the information requested. I will therefore consider this issue before I consider whether Coillte is entitled to rely on articles 8(a)(i), 8(a)(ii), 8(a)(iv) or 9(1)(c) to refuse certain parts of the request.
29. As noted at paragraph 12 above, this issue was not raised by any of the parties but I consider it to be within my jurisdiction to address given that it impacts on the applicability of articles 8 and 9(1)(c) of the AIE Regulations, which have been raised by Coillte as grounds for refusal. The decision of the Court of Appeal in Redmond also makes it clear that proceedings before me “are inquisitorial rather than adversarial in character” and “the extent of the inquiry is determined by the Commissioner, not by the parties” (see paragraph 51). The appellant, Coillte and Planree Limited were advised by the Investigator that the application of article 10(1) would be considered as part of this appeal and provided with an opportunity to make submissions on the matter. Those submissions have been considered as part of this decision and I am therefore satisfied that the fair procedures entitlements of the parties have been adequately respected.
30. The request at issue in this case seeks information “relating to the Meenbog landslide”. The question to be addressed therefore is whether that landslide can be considered to amount to emissions into the environment.
31. Coillte argues that the sliding of peat into a river cannot be considered “emissions” within the meaning of article 10(1) as the AIE Regulations distinguish information on the interaction among elements of the environment (such as between soil and water) from information on releases into the environment. It points in this regard to the definition of “environmental information” contained in the Regulations and the Directive which makes reference to the concept of “emissions”. It notes that category (b) of the definition refers to “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”. It notes that “elements of the environment” are referred to in category (a) of the definition and encompass “air and atmosphere, water, soil, land, landscape…and the interaction among these elements”. It submits that in the case of the Meenbog peat slide, no factor such as a substance, energy, radiation, waste, or other similar matter, was emitted, discharged or released “into the environment”.
32. Coillte relies on paragraph 82 of the CJEU’s decision in the PAN Europe case, in support of its argument that although article 10(1) refers to a request that “relates to” emissions into the environment, “it is settled law that the request must be for information on emissions into the environment, and not, for example, for information that merely relates or has some link – even in a sufficiently direct manner – to emissions into the environment”.
33. It submits that the reference to emissions, discharges or releases “into the environment” in both the definition of “environmental information” and article 10(1) makes it clear that something that is not normally or already in, or part of, the environment must be introduced or released into the environment in order to come within these provisions. It argues that the definition of “environmental information” also makes it clear that the factor introduced into the environment must be something that affects, or is likely to affect, elements of the environment. It argues that this means that a factor not usually or already in the environment, which is not itself an element of the environment, must be introduced or released into the environment in order for there to be an “emission into the environment” within the meaning and for the purposes of the AIE Regulations.
34. Coillte accepts that the sliding of peat into water can cause an environmental impact but submits that peat and bog are elements of the environment, within the meaning of the Regulations, as is water. It goes on to argue that the sliding of peat into water involves, at most, an interaction between elements of the environment in a manner that may affect one or more of those elements, rather than the introduction or release of matter that is not normally or already in the environment into the environment in a manner that affects, or is likely to affect, elements of the environment. It accepts that information on the interaction between elements of the environment constitutes potentially accessible information under the AIE Regulations but argues that it is expressly distinguished from information on emissions into the environment.
35. Coillte notes that peat slides can occur naturally and as a result of human activity. It argues that in both cases, the peat slide would be the same, but one would not characterise a peat slide derived from natural causes as an “emission into the environment”.
36. Coillte also argues that in order to emit, release or discharge matter into the environment that is not already in the environment, that matter must be emitted, released or discharged from a source. It refers in this regard to guidance from the UK Information Commissioner’s Office (ICO) on ‘Information on Emissions’ (See: https://ico.org.uk/for-organisations/foi-eir-and-access-to-information/freedom-of-information-and-environmental-information-regulations/information-on-emissions-regulation-12-9-environmental-information-regulations/#informationonemissions ). It submits that this Guidance states that an “emission” will generally mean “the by-product of an activity or process that is added (or potentially added) to and affects the elements of the environment over which any control is relinquished”. It submits that in the case of the Meenbog peat slide, there was no by-product from any activity or process that was added to the elements of the environment, over which there was control, and in circumstances where that control was relinquished.
37. It submits that it has not been able to identify any case law which engages with the question of whether “emissions into the environment” can be present in a case where a discharge or release comprises of an element of the environment being released into another element of the environment in circumstances where that release could have occurred naturally but happened to be associated (to whatever degree) with human activity, and where the element being discharged or released is not a by-product inherently associated with the human source activity concerned, the release or otherwise of which would ordinarily be controllable within that activity. It submits that the existing case law involves “elements of there being a source-activity, process or product and the reasonable possibility of, or the actual release of, by-products inherently associated with that source activity into the environment in a manner affecting, or likely to affect, the elements of the environment”. It relies, in this respect, on the decision of the CJEU in Bayer.
38. It accepts that the CJEU in Bayer takes the view that the term “emissions” should not be interpreted in such a limited way as to encompass only emissions produced by certain industrial installations but submits that the judgment of the CJEU “nonetheless intimates that whilst there is a wider category of things from which emissions into the environment can emanate, one will be looking for a ‘source of activity’ as part of which this occurs”. Coillte refers to paragraph 72 of the decision in Bayer in which the CJEU notes as follows:
“information concerning emissions emanating from sources other than industrial installations, such as those resulting from the application of plant protection products or biocides, are just as relevant to environmental protection as information relating to emissions of industrial origin” (emphasis added by Coillte).
39. It submits that the CJEU “appears, therefore, to contemplate that there must be a source-activity, process or product, the by-product of which is, or is foreseeably to be, emitted or released into the environment, in circumstances where that by-product when, or if, emitted affects or is likely to affect elements of the natural environment”.
40. Coillte goes on to submit that since the term “emissions” is not defined in the Regulations or the Directive, it should be given its ordinary, natural meaning. It submits that “the reader of the legislation would first note that the word used in article 10(1) of the AIE Regulations is in the plural, rather than the singular”. It goes on to refer to the Cambridge Online Dictionary definition of “emissions” which includes the following:
“[C usually plural] – environment – specialised an amount of a substance that is produced and sent into the air that is harmful to the environment, especially carbon dioxide”.
41. It submits that most members of the public, if asked what “emissions into the environment” they imagined might emanate from a wind farm development, “would be thinking of something that was generated by, and was an inherent by-product of, the process of the development and operation of the wind farm, which affected or was likely to affect the natural environment, and was not itself already part of, and in, the natural environment – possibly noise or carbon dioxide or electromagnetic radiation and so on”. It goes on to submit that in general terms, outside of the wind farm context, the public is likely to think of “emissions into the environment” as “gases, smoke, chemical discharges, and so on, emanating from activities and processes”. It then refers to emissions from passenger vehicles and submits that members of the public would “think of gases such as nitrogen oxides, carbon dioxide, carbon monoxide and so on” and would not “expect that the ‘emissions’ associated with a particular vehicle included the propensity, should the scenario materialise, of the vehicle to disturb elements of the environment that are part of the natural environment in such a way as to have an effect on other elements of the environment” nor would they “expect to see in the emission statistics for an off-road vehicle, ‘emissions’ information as to, for example, the displacement of peat into a water course, should the vehicle traverse peatland and cause peat to be discharged into the watercourse”.
42. Coillte submits that its position is also corroborated by the fact that article 10(1) does not simply refer to “emissions” but to “emissions into the environment”. It submits that this suggests “that something resulting from human activity, and a by-product of same, is then ‘added into’ the environment” which “does not appear to contemplate the inclusion within the concept…of human disturbances of, or human-mediated interactions between, elements of the environment that are already in the environment, even if such human acts or omissions lead to the interaction between the elements causing an effect on one, or more, of the elements concerned”.
43. It submits that this position is further supported by considering the etymology of the word “emission”. It refers to the word-origin for emission given by the Oxford Learner’s Dictionary which notes that the term derives “from Latin emission(n-), from emiss- ‘sent out’, from the verb emettere, from e- (variant of ex-) ‘out of’ + mittere ‘send’”. It argues that this supports the rationale of the CJEU in Bayer that “there must be a source-activity, process or product, the by-product of which is, or is foreseeably to be, emitted or released into the environment, in circumstances where that by-product when, or if, emitted affects or is likely to affect elements of the natural environment”. Coillte further submits that the definition of emission contained in Murdoch & Hunt’s ‘Encyclopaedia of Irish Law’ supports its position. That definition is as follows:
“A release of substances, heat or noise into the atmosphere, water or land – includes:
a. an emission of a pollutant within the meaning of the Air Pollution Act 1987;
b. the release of a greenhouse gas into the atmosphere;
c. a discharge of polluting matter, sewage effluent or trade effluent within the meaning of the Local Government (Water Pollution) Act 1977, to waters within the meaning of that Act; or
d. waste under the Protection of the Environment Act 2003, section 5.
44. Finally, Coillte submits that its interpretation of “emissions into the environment” is consistent with the spirit and purpose of the AIE Regulations. It submits that when the Regulations speak of “environmental information” including information on emissions released into the environment affecting or being likely to affect, for example, water, they can be seen to focus on the disclosure of information that is internal and intrinsic to, or inherent in, the process or activity that causes the emissions as a by-product when control is relinquished. It submits that, in that regard, the CJEU in Bayer also adverted to “emissions into the environment” covering not only actual emissions, but also information on “foreseeable emissions into the environment [that might arise] under normal or realistic conditions of use”. Coillte submits that “apart from any publication or disclosure of such emissions that might otherwise be mandated by law, such information is ordinarily only known to the person(s) involved with the activity or process and/or any public authority involved (for example a regulatory authority)” which is why the AIE Regulations provide for a right of access to such information. It argues that such information “is to be distinguished from, and contrasted with, information that is external and extrinsic to, or not inherently associated with the process or activity, and which is publicly available, such as, for example, in this case, information as to the interaction between peat and water when one is introduced to the other, whether naturally or anthropogenically”.
45. Planree also submits that the sliding or movement of peat into a river does not constitute an “emission into the environment”. It argues that the existing case law does not provide a reasonable basis on which to conclude that the movement of peat is an emission, discharge or release and that none of the examples or circumstances of emissions in those cases are comparable, as they involved a product or substance which emanated from a source whereas the current circumstances involve an event which resulted in the movement of peat from one location to another. It argues that the movement of peat cannot be said to be comparable to the examples of “emissions” referred to in the existing case law such as the emission of chemicals, light, heat, gas, radiation, electromagnetic waves or anything similar. It submits that if the legislation had intended to cover “events” as well as “emissions” it would have done so explicitly.
46. Planree submits that the decision of the CJEU in Bayer is of limited benefit in this case as it was made in the context of a request for information relating to biocides. It submits that the issue before the Court was whether it was appropriate to use the definition of “emissions” contained in the Industrial Emissions Directive given that no definition was provided for in the AIE Directive. It submits that while the CJEU decided that it was not appropriate to rely on the narrow definition of emissions contained in the Industrial Emissions Directive, it did not go on to define exactly what constitutes an emission “likely on the basis that there was no question that the release of a substance such as biocides amounted to an emission”. It refers to the opinion of Advocate General Kolkott which suggested that “the emissions clause should be understood as covering information on the release of substances, organisms, mico-organisms, vibrations, heat or noise into the environment, in particular into air, water or land as a result of human activities”. It submits that the interpretation of the CJEU and the Advocate General in Bayer aligns with what a reasonable person on the street would consider to be an emission and is in keeping with the objectives of the Regulations and the Directive, one of which is to ensure that products or substances emitted from a source are monitored to ensure that no environmental damage takes place. It submits that peat does not fall to be considered as a product or substance envisaged by the decision in Bayer as it forms part of the environment and would not be monitored out of a concern that it could “emit”, “release” or “discharge”.
47. Planree argues that the fact that, in exceptional circumstances, peat can move to a new location, does not bring it within the definition of emissions set out in Bayer. It argues that even in its movement, peat remains part of the environment and not an external product or substance emitting into the environment.
48. Planree also relies on the decision of the UK Information Tribunal in GM Freeze in support of its interpretation of “emission”. It notes that in that case, the Tribunal found that the sowing of a seed could not constitute an emission, stating that:
“To emit is defined in the Shorter Oxford Dictionary as to ‘give off, send out from oneself or itself (something imponderable, as light, sound, scent, flames etc); discharge, exude a fluid’. That definition is reflected in the inclusion of emissions with ‘energy’, ‘noise’, ‘radiation’, ‘discharges’ and ‘other releases into the environment’ in category (b) of the definition of environmental information in Reg 2 of EIR. Genetically modified organisms appear in (a).
Sewing is not a release into the environment of the kind listed in category (b) but a deliberate act. We conclude therefore that the act of sowing was not an emission”.
49. It submits that although the decision in GM Freeze was focused on the deliberate nature of the act of sowing, which is not relevant to the case at hand, it is notable that the Tribunal looked at the definition of “emit” contained in the Shorter Oxford Dictionary. It submits that the movement of peat is not captured by this definition as the common thread underlying the definition is that there has been some form of by-product created where none previously existed. It submits that the movement of peat could not fall under this definition as the peat was already in existence and simply moved from one location to another due to an event, without giving off, sending out, discharging or exuding anything from itself.
50. It also refers to the decision of the UK Information Tribunal in the Ofcom case which it also submits aligns with its interpretation that in order for something to be considered an emission it must be a form of by-product, emanating from a source. It submits that the Tribunal in Ofcom determined that radio wave radiation emanating from a base station was an emission but did not address the movement of one part of the environment into another. It submits that peat cannot be an emission as it is already in existence without reference to an external source and that the movement of peat to a new location does not bring it within any known definition of “emissions”.
51. The starting point of my analysis is the precise wording of article 10(1) of the AIE Regulations, which states that “notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused 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”.
52. As noted above, the request in this case was for information “relating to the Meenbog landslide”. The Meenbog landslide involved the sliding of peat into a watercourse and on to the Mournebeg river. The question to be addressed therefore is whether this amounts to emissions into the environment. If it does, the request for information relating to the Meenbog landslide is one relating to information on emissions into the environment and article 10(1) applies.
53. As Coillte and Planree note in their submissions, the CJEU has assessed the meaning of the phrase “information on emissions into the environment” in its decision in Bayer. In that case, the requester had sought information from the CTB, a Dutch public authority responsible for the granting of authorisations to place plant protection products and biocides on the market. The information sought related to a decision to amend authorisations for products and biocides containing imidacloprid. As Planree points out, the facts arising in Bayer are somewhat different to those arising in this instance. However, I consider that the decision nonetheless contains useful guidance on the parameters to be applied to the interpretation of “emissions” as it appears in article 10(1).
54. The CJEU found, in the first instance, that the concepts of “emissions into the environment” and “information on emissions into the environment” is not to be interpreted in a restrictive way. This is because the inclusion of that concept 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 strictly. It also gives effect 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).
55. I note in this regard that Coillte has made reference to the decision of the CJEU in Pan Europe which was issued on the same day as Bayer but, unlike Bayer concerned the application of Regulation 1367/2006 which concerns the implementation of the access rights contained in Aarhus Convention for EU institutions and bodies as opposed to the AIE Directive which is directed at Member States. As Coillte rightly points out, the CJEU in PAN Europe 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’”. However, I do not agree that the import of paragraph 82 of the CJEU’s decision is that the request must be for information on emissions into the environment and not for information that merely relates to emissions into the environment. This is made clear by paragraph 78 of the decision in PAN Europe in which the CJEU expressly finds that “it follows from the wording of Article 6(1) of Regulation No 1367/2006 [which provides that “an overriding public interest in disclosure shall be deemed to exist where the information requested relates to emissions into the environment”] that that provision concerns information which ‘relates to emissions into the environment’, that is to say information which concerns or relates to such emissions and not information with a direct or indirect link to emissions into the environment” (emphasis added). The CJEU does place limitations on the extent of the concept, finding in paragraph 81 that it may not “include information containing any kind of link, even direct, to emissions into the environment” since such an approach would “to a large extent deprive the concept of ‘environmental information’ of any meaning” and would “deprive of any practical effect the possibility…for institutions to refuse to disclose environmental information on the ground, inter alia, that such disclosure would have an adverse impact on the protection of the commercial interests of a particular natural or legal person and would jeopardise the balance which the EU legislature intended to maintain between the objective of transparency and the protection of those interests” and “would constitute a disproportionate interference with the protection of business secrecy ensured by Article 339 TFEU”. The CJEU in Bayer also sets out limitations on the extent of the concept, noting that the concept “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). The limitations set out by the CJEU in PAN Europe and Bayer are not the same, however, as the one suggested by Coillte, which uses paragraph 82 of PAN Europe as authority for its proposition that “it is settled law that the request must be for information on emissions into the environment, and not, for example for information that merely relates or has some link – even in a sufficiently direct manner – to emissions into the environment”. The test is whether the request relates to information on emissions into the environment, not whether it is for such information. As noted above, the request in this case is for information relating to the Meenbog landslide so the question to be addressed is whether information on the Meenbog landslide is information on emissions into the environment.
56. I note that a significant portion of Coillte’s and Planree’s argument as to why the peat slide should not be considered an “emission” is that peat is an element of the environment and that information on its interaction with water should not be considered information on emissions into the environment. Coillte and Planree submit that support for this distinction can be found in the fact that the definition of “environmental information” distinguishes between information on interactions between elements of the environment, in category (a), and information on factors (such as substances, energy, noise, radiation or waste) including emissions, discharges and other releases into the environment referred to in category (b). Planree also argues that peat does not fall to be considered as a product or substance envisaged by the decision in Bayer as it forms part of the environment and would not be monitored out of a concern that it could “emit”, “release” or “discharge”. It argues that the fact that, in exceptional circumstances, peat can move to a new location, does not bring it within the definition of emissions set out in Bayer since, even in its movement, peat remains part of the environment and not an external product or substance emitting into the environment. Coillte submits that in the case of the Meenbog peat slide, no factor such as a substance, energy, radiation, waste, or other similar matter, was emitted, discharged or released “into the environment”.
57. I disagree with these contentions. Peat, which is a substance, was released into the environment following the landslide. Planree submits that the movement of peat could not fall under the definition of “emissions”, which imputes the giving off, discharging or creation of some form of by-product created where none previously existed, as the peat was already in existence and simply moved from one location to another due to an event, without giving off, sending out, discharging or exuding anything from itself. I also disagree with this contention since a key concern in the aftermath of the slide was the potential biodiversity impacts of the peat slide on fisheries suggesting that a potentially damaging by-product was created as a result of the release of peat into the water. Northern Ireland Water’s submissions to this Office note that in the aftermath of the peat slide works, the poor quality of the water from the Mournebeg and Derg rivers required diversion works so that drinking water could be abstracted from an alternative source again suggesting that some by-product did occur as a result of the discharge. Similarly, the fact that restoration works are necessary on the streams and rivers impacted also suggests the creation of a by-product (see: https://www.loughs-agency.org/meenbog-peat-slide-multi-agency-update-may-2021/ ).
58. I accept that there must be a limitation on what constitutes “emissions into the environment”. That is made clear by the carve out for “information on emissions” contained in the Regulations and the Directive (which would otherwise not be necessary) and by the decision of the CJEU in Bayer. I do not accept however that the distinction is to be drawn by finding that if something constitutes an “element” of the environment it cannot be considered to have been emitted into the environment under any circumstance. If this were the case, carbon emissions, which are a significant focus of the climate change debate, could not be considered emissions within the meaning of the Regulations or Directive as carbon dioxide is found naturally in the atmosphere such that it constitutes an element of the environment within the meaning of category (a). If I were to accept Planree’s argument that the fact that the movement of peat can never be an emission as it remains part of the environment and not an external product or substance emitting into the environment, this would also exclude elements such as carbon dioxide from the scope of the definition of “emissions”. As Coillte notes, carbon dioxide emissions are perhaps one of the first things which would come to mind were one to consider what is meant by the concept of “emissions into the environment”.
59. I also note in this regard that the CJEU in both Bayer and PAN Europe had regard to the inclusion of “emissions” in category (b) of the definition of “environmental information”. Again the issue for consideration was not the same as that at issue in this case – the question the CJEU addressed in Bayer was whether any meaning should be attached to the distinction between “emissions, discharges and other releases” in category (b), rather than the import of the distinction between “elements” and “factors” in categories (a) and (b). Nonetheless, I consider guidance can be gleaned from the rationale of the CJEU in reaching its conclusion that it was not necessary to distinguish between emissions, discharges and other releases. It found that “although [the definition of “environmental information”] appears, prima facie, to establish such a distinction” it was “irrelevant in light of the objective of [the AIE Directive] concerning the disclosure of environmental information and would be artificial” as “emissions of gas or substances into the atmosphere and other releases or discharges such as the release of substances, preparations, organisms, micro-organisms, vibrations, heat or noise into the environment, in particular into air, water or land, may affect those various elements of the environment”. It went on to find that the concepts “broadly coincide, as shown by the use of the expression ‘other releases’ in [category (b)] from which it follows that emissions and discharges are also releases into the environment” (see paragraphs 61 to 67). Similarly, I consider that a factor affecting or likely to affect an element of the environment may itself be an element of the environment. Not only does category (b) fail to expressly rule out such a possibility, the adoption of an alternative approach would undermine the purpose of the Directive to provide the widest possible availability of information which may affect elements of the environment, just as the CJEU considered would be the case were an artificial distinction between emissions, discharges and other releases to be adopted.
60. The CJEU then went on to reject the narrow interpretation of “emissions” in the Industrial Emissions Directive. It found that nothing in the Aarhus Convention or the AIE Directive “permits the view that the concept of ‘emissions into the environment’ should be restricted to emissions emanating from certain industrial installations”. It considered firstly that this would be contrary both to the express wording of the Convention, article 4(4) of which provides that “information on emissions which is relevant for the protection of the environment must be disclosed”. It found 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”. Not only that, it found that “restriction of the concept of ‘emissions into the environment’…to emissions emanating from certain industrial installations would be contrary to [the AIE Directive’s] objective of the widest possible disclosure of environmental information” (see paragraphs 68 to 74).
61. Again, the CJEU emphasised the importance of an interpretive approach based on the objectives of the Directive. It appears to me therefore that the import of the CJEU’s decision in Bayer is that the concept of “emissions into the environment” should be interpreted broadly, without seeking to draw artificial distinctions based on the definition of “environmental information” but subject always to the guiding principle that the purpose 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. The limitation excluding hypothetical emissions from the definition is put in place with that objective in mind. The question I must ask myself therefore is whether I consider that release of the information requested in this case would provide access to information concerning factors affecting or likely to affect elements of the environment. As I will explain in further detail below, my conclusion is that it would and it appears to me that the distinctions which both Coillte and Planree have sought to draw in their submissions are artificial ones which, if followed, would undermine the purpose of the Regulations and the Directive to provide the widest possible access to environmental information, particularly in cases involving the emission, discharge or release of factors likely to affect elements of the environment.
62. The Investigator also drew the parties’ attention to the guidance of the UK Tribunals. That guidance is not binding on me but I will address it as it has been referred to by Coillte and Planree in their arguments as to why the request in this case should not be considered one which relates to information on emissions. As Coillte points out, the ICO’s Guidance states that an “emission” will generally mean “the by-product of an activity or process that is added (or potentially added) to and affects the elements of the environment over which any control is relinquished”. It refers to the Ofcom case (which pre-dates the CJEU’s decision in Bayer), in which the Information Tribunal found that the concept of “emissions”, “should be given its plain and natural meaning and not the artificially narrow one set out in the [Industrial Emissions Directive]”. In reaching that conclusion, the Tribunal followed a similar logic to that adopted by the CJEU in Bayer, that is that the concept was not defined in the Aarhus Convention, the AIE Directive or the UK’s transposing regulations, that the interpretation in the Aarhus Guide could not be considered as authoritative and that, as an exception to the exceptions, the concept of information on emissions should be interpreted broadly, particularly having regard to the wording of Recital 16 of the Directive.In GM Freeze, the Tribunal did not consider the sowing of a seed, even in ignorance of its nature, to be properly described as an “emission”. It referred to the definition of emission in the Shorter Oxford Dictionary (referred to in paragraph 47 above) before concluding that “sowing is not a release into the environment of the kind listed in category (b) but a deliberate act”. The ICO has interpreted the Tribunal’s Guidance, along with the decisions in Bayer and PAN Europe, to mean that a three-limb test applies generally to “emissions” which are (i) the by-product of an activity or process; (ii) that is added (or potentially added) to and affects the elements of the environment; (iii) over which any control is relinquished.
63. There is some utility to be gleaned from this guidance as to where the boundary might lie between the interaction of elements into the environment and the emission release or discharge of one element or matter into another. However, I must be cautious when applying such guidance to ensure that it does not conflict with the principles outlined by the CJEU in the decisions referred to above as the CJEU’s guidance is binding on me. In the first instance, I note the observations of the Tribunal in Ofcom to the effect that the term “emissions” should be given its “plain and natural meaning”. I consider that this approach needs to be tempered by the clear guidance from the CJEU that the key consideration when approaching the interpretation of the Directive is its underlying objective. This position is reinforced by the Supreme Court in NAMA a decision which makes it clear that I must approach the interpretation and application of the Regulations teleologically having regard to the purpose of the Directive. I consider that this interpretation also aligns with the approach of the Tribunal in Ofcom which referred to the objective of the Directive in its findings.
64. Secondly the limb of the ICO’s test which refers to the relinquishing of control must be approached with Bayer in mind. The CJEU in Bayer found that emissions into the environment covers the release into the environment of products or substances such as plant protection products or biocides and substances contained in those products to the extent that such release is actual or foreseeable based on normal conditions of use. One might consider that case to be more similar to the circumstances of the GM Freeze case, which involved the sowing of GM crops (considered not to involve emissions), than to the Ofcom case which involved radio wave emanation from phone masts. The use of plant protection products and biocides is presumably as deliberate an act as the sowing of crops.The relinquishing of control referred to by the ICO may be seen to occur once the product or biocide has been used since it is not possible for the user to put the genie back in the bottle once the product has been used and they can have no further control over its impact. However, again the same logic would appear to me to apply to the sowing of a crop. I therefore consider this limb of the test to be of limited use.
65. The key seems to me to lie in the fact that the emission is not necessarily an intended consequence of the activity in question, but rather a by-product of such activity. For example, had no landslide occurred, information as to the interaction between the peat located close to the waterbody and that body of water itself would likely not be considered information on emissions. The distinguishing factor in this case is that, although it does not appear to have been a direct intention of the activity on the land, the peat in question appears to have been dislodged due to that activity, resulting in its discharge into the body of water and on into the Mournebeg River. This is similar for example to a situation where carbon dioxide is released into the atmosphere as side effect or by-product of a particular activity such as the burning of fossil fuels. Information on such a scenario would be information on emissions into the environment despite the fact that carbon dioxide already exists in the atmosphere naturally. This approach appears to me to align with the wording and purpose of the Directive which is to ensure the widest possible dissemination and availability of environmental information to “contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment”. From that perspective, it makes sense that the Directive would provide for greater availability of environmental information in order to ensure the widest availability of information on unintentional, non-deliberate or uncontrolled side-effects or by-products of an activity which has potential environmental impact so that the public can be aware of such impact and environmental decision-making in that regard can be the subject of informed debate. It seems to me to that what the Regulations and the Directive envisage in a scenario such as this, is that the widest possible amount of information on the peat discharge, its cause and its potential effects would be available to members of the public to promote informed debate and input in relation to decision-making including decision-making on remedial and preventative measures.
66. Coillte also recognises the relevance of the “by-product” concept. It relies, in this respect, on the decision of the CJEU in Bayer which, it argues, “appears…to contemplate that there must be a source-activity, process or product, the by-product of which is, or is foreseeably to be, emitted or released into the environment, in circumstances where that by-product when, or if, emitted affects or is likely to affect elements of the natural environment”.
67. Coillte goes on to argue that in this case, there was no by-product from any activity or process that was added to the elements of the environment, over which there was control, and in circumstances where that control was relinquished. Planree makes a similar argument that the occurrence of emissions requires emanation from a source and the creation of some form of by-product where none previously existed.
68. As outlined above, I consider that the relinquishing of control element needs to be tempered to accord with the rationale set out by the CJEU in Bayer. I do agree with Coillte and Planree that the CJEU in Bayer does make reference to emissions emanating from a source, including at paragraph 72 of its decision where it notes that “information emanating from sources other than industrial installations, such as those resulting from the application of plant protection products or biocides, are just as relevant to environmental protection as information relating to emissions of industrial origin”. It is also common sense that an emission, discharge or release must come from a source. I disagree however with the contention that it is not possible to identify a suitable source activity in this case. The source activity appears to have been the disturbance of the land. The discharge of peat from its previous location and its release into neighbouring watercourses was a by-product of that source activity.
69. Coillte and Planree go further and seek to argue that only information which is “internal, intrinsic to or inherent in” the process or activity that causes the emissions as a by-product can be considered information on emissions. Coillte argues that such information “is to be distinguished from, and contrasted with, information that is external and extrinsic to, or not inherently associated with the process or activity, and which is publicly available, such as, for example, in this case, information as to the interaction between peat and water when one is introduced to the other, whether naturally or anthropogenically”. Planree argues that the movement of peat can never be considered an emission as peat remains part of the environment and not an external product or substance emitting into the environment. I am not persuaded by this argument and can find no logic in this distinction. While Coillte relies on the distinction in Bayer between hypothetical and foreseeable emissions in support of its argument, I consider that a distinction between information on, and information not inherently associated with, the process or activity such as the interaction between peat and water, is at odds with the CJEU’s finding in Bayer that information on emissions includes “information concerning the nature, composition, quantity, date and place of the ‘emissions into the environment’ of those products or substances, and data concerning the medium to long-term consequences of those emissions on the environment, in particular information relating to residues in the environment following application of the product in question and studies on the measurement of the substance’s drift during that application” (see paragraph 107).
70. I agree, to some extent, with Coillte’s contention that “something that is not normally or already in, or part of, the environment must be introduced or released into the environment in order to come within [the] provisions of article 10(1)”. I do not agree however that this test is not met in this case. Had a request been made for information on the Meenbog development in advance of the peat slide, when peat was present at the site but had not spilled into the neighbouring watercourse, it does not appear to me likely that it would have been possible to say the request was one relating to emissions into the environment. The release or spill of peat into a neighbouring water course is the introduction of something that is not normally or already in the relevant part of the environment (i.e. the water course) necessary to bring the request in this case within the definition of “emissions into the environment” such that the provisions of article 10(1) apply.
71. I note that Coillte has also sought to draw a distinction between peat slides derived from human activity and those derived from natural causes, arguing that it is illogical that one might be considered an emission while the other would not. While I do not wish to veer too far beyond the circumstances of this case, in which it appears that the peat slide was related to human activity such that the question of natural causes is irrelevant, I do not find it illogical that the concept of “emissions into the environment” would not cover an interaction which derived from natural causes. This is why I agree with the logic of Coillte’s argument that one of the reasons for the carve out for emissions is so that the public can better understand the cause and effect of such emissions, the objective being more informed debate around environmental decisions to prevent the causes and remediate the effects. Such prevention may not be as necessary or possible in the case of natural events, albeit it that there is considerable room for debate as to what constitutes “natural causes” or “natural events”. It is not necessary for me to engage any further in that debate for the purposes of this decision.
72. On a similar note, I do not find any utility in Planree’s attempt to distinguish between the concept of an “event” and an “emission”. In many cases, if not all, the release of emissions will occur as a result of an event or be an event in itself.
73. Coillte and Planree have also made repeated references to the dictionary definitions of “emit” and “emissions” but I do not see anything in those definitions which would prevent a conclusion that the release of peat into a watercourse, as occurred in the circumstances of this case, being considered an “emission” within the meaning of article 10(1). I do not accept, as Coillte contends, that there is a particular emphasis to be given to the use of “emissions” in its plural form in article 10(1), I consider that this can be explained by the general application of the Regulations and Directive to multiple requests and multiple scenarios. I note, for example, that article 9(1)(d) of the Regulations allows for the refusal of information where release would adversely impact “intellectual property rights” but I do not think this means that more than one intellectual property right must be at issue before that article can be considered to apply.
74. I also note that Coillte has referred to the definition of “emission” contained in Murdoch & Hunt’s ‘Encyclopaedia of Irish Law’ in support of its position. However, that definition appears to be satisfied in this case since it includes “a discharge of polluting matter, sewage effluent or trade effluent within the meaning of the Local Government (Water Pollution) Act 1977, to waters within the meaning of that Act”. The 1977 Act defines “polluting matter” as including “any poisonous or noxious matter, and any substance (including any explosive, liquid or gas) the entry or discharge of which into any waters is liable to render those or any other waters poisonous or injurious to fish, spawning grounds or the food of any fish, or to injure fish in their value as human food, or to impair the usefulness of the bed and soil of any waters as spawning grounds or their capacity to produce the food of fish or to render such waters harmful or detrimental to public health or to domestic, commercial, industrial, agricultural or recreational uses”. It is not my function to adjudicate on whether offences under the 1977 Act have been committed but I do note, as outlined at paragraph 2 above, that Planree has admitted responsibility for the release of “deleterious” material into a watercourse as a result of which those waters were considered by Northern Ireland Water to pose a public health risk. The definition of “deleterious matter” in the Foyle Fisheries (Amendment) Act 1961 is similar to that contained in the 1977 Act being “any substance (including an explosive) the entry or discharge of which into any waters is liable to render those or any other waters poisonous or injurious to fish, spawning grounds or the food of any fish or to injure fish in their value as human food or to impair the usefulness of the bed and soil of any waters as spawning grounds or their capacity to produce the food of fish”. A statement from the Loughs Agency also notes that the peat slide “affected rivers and a fish farm in Northern Ireland, putting the Northern Ireland drinking water abstraction on alert” (see: https://www.loughs-agency.org/loughs-agency-statement-on-meenbog-incident/ ). Coillte’s submissions to this Office also note that Donegal County council wrote to Planree following the incident, pursuant to sections 10(5), 12(1) and 23(1) of the Local Government (Water Pollution) Act 1977, requesting certain steps to be taken including the preparation of an action plan and that certain enforcement investigations were commenced by the Council pursuant to the 1977 Act.
75. Planree has argued that it does not follow that if an event results in “deleterious matter” moving into water, that this same matter is automatically considered an “emission” under an entirely different piece of legislation and that the core question for me to consider is not whether the meaning of “deleterious matter” is the same as “emissions” but whether an event resulting from the movement of peat could be considered an “emission” within the meaning of the AIE Regulations. I agree with this argument and to be clear, I am not reaching the conclusion that because Planree has pleaded guilty to the discharge of “deleterious matter” into a watercourse that this automatically results in the requirements of article 10(1) of the AIE Regulations being satisfied. I am simply addressing one of the arguments put forward by Coillte in support of its position that the definition of “emissions” should not be considered satisfied in this case. While I do not consider Planree’s admission in the District Court that it did cause deleterious matter to fall into waters to be determinative of the matter, I do consider it a relevant factor which supports my conclusions, as outlined above, that the release or spill of peat into a neighbouring water course, in the circumstances of this case, satisfies the definition of “emissions into the environment” having regard to the wording and purpose of the AIE Regulations, the Directive and the guidance of the CJEU.
76. I am therefore satisfied that the request in this case is one which relates to information on emissions into the environment such that article 10(1) of the AIE Regulations applies. This means that the grounds for refusal contained in articles 8(a)(i), 8(a)(ii), 8(a)(iv) and 9(1)(c) cannot be relied upon by Coillte.
77. I will therefore only proceed to consider the application of articles 9(1)(b) and 9(2)(d) and whether either, or both, of these articles can be said to provide grounds for refusal of certain information at issue in this appeal.
Application of article 9(1)(b)
78. Article 9(1)(b) provides that “a public authority may refuse to make environmental information available where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries)”.
79. Coillte argues that article 9(1)(b) provides grounds for refusal of Documents 21 to 52. In its internal review decision, Coillte noted its view that the reference to “course of justice”, in article 9(1)(b) was “not limited to the course of extant or nascent legal proceedings before the Courts” but was wider in import. It informed the appellant that there were current interactions between Planree and various agencies with responsibilities relating to the event and with other affected and/or interested parties. It went on to note that a number of agencies were also “considering further, or other, functions, powers or duties that they might perform, or be required to perform, in relation to the event”. It stated that some of those agencies had regulatory, investigative, enforcement, prosecutorial and/or other similar powers and functions and that those processes were “ongoing and will play out according to the appropriate procedures and rights and obligations of the various parties, including [Planree]”. It concluded that “disclosing information relating to the Event in the delicate context of the various ongoing and/or contemplated processes would adversely affect the course of justice...insofar as the information-disclosure and withholding rights and obligations pertaining to such processes are the subject of careful legal prescription and control according to the processes concerned”.
80. When asked to identify those agencies by the Investigator, Coillte listed the following:
(i) The Loughs Agency;
(ii) Donegal County Council;
(iii) Northern Ireland Water;
(iv) Derry City & Strabane District Council;
(v) The Northern Ireland Environment Agency;
(vi) The Rivers Agency;
(vii) The National Parks and Wildlife Service; and
(viii) The Environmental Protection Agency.
81. It submitted that those agencies were involved in various investigations and proceedings, including inter-agency groups and cross-border multi-agency investigation groups as well as considering their own respective positions and investigating the incident. It also suggested that this Office “consult with these agencies regarding their respective positions in order to obtain the best and most direct and up-to-date evidence relating to the proceedings that are in train, their nature and their status”.
82. The Investigator wrote to the agencies listed above seeking submissions from them as third parties who might be impacted by release of the information at issue. She asked them generally to outline any adverse impact on their interests which might occur were the information to be release and specifically to outline whether they were aware of or involved in proceedings in relation to the landslide.
83. The EPA responded to note that it had not taken any legal action to date and was not considering taking such action at the time of its submissions. Donegal County Council confirmed it had no objection to release of the information by Coillte. The Rivers Agency responded to note that it was not contemplating proceedings in relation to the land slide at Meenbog and therefore did not consider it necessary to make a submission. The Loughs Agency noted that while it had been involved in prosecuting Planree, and had advised Coillte of this following consultations at the time of the original request, its legal case had since concluded such that “the disclosure of information relating to this incident would no longer be viewed by the Agency as sub judice or prejudicial to the Agency’s interests in relation to any action in any criminal court”. Northern Ireland Water submitted that while it was involved in a cross-border group at which the possibility of legal action had been discussed, it was not involved in those discussions in any detail and had “no legal proceedings considerations”. The Northern Ireland Environment Agency submitted that while it had commenced a process under the Environment Order (NI) 2022, it was subsequently deemed not applicable as the incident occurred outside its jurisdiction but it noted that it continued to assess the impact of the event. The National Parks and Wildlife Service confirmed it was not issuing enforcement procedures and did not consider that release of the information would directly impact its interests. Derry City & Strabane District Council also confirmed that there were “no actions required by [the Council] in relation to this matter nor are any actions anticipated”.
84. Planree, as the developer of the site, was also contacted in its capacity as a third party which may be impacted by release of the information at issue. It agreed for the most part with Coillte’s position and submitted that the December 2020 Correspondence along with Documents 38 to 50 should be withheld on the basis of article 9(1)(b). It submitted that it was still interacting with a number of public bodies in relation to the incident in order to provide important technical information and context and that release of both the December 2020 Correspondence and Documents 38 to 50, without context, technical information or explanation, would have a serious and adverse impact on its reputation. It submits that the seriousness of this reputational risk is evidenced by its decision to take a High Court challenge against the legality of enforcement proceedings taken under the Planning and Development Act. It further submits that those proceedings are still active and it would not be appropriate to release the information at issue until the factual matters of dispute between the parties have been resolved. It argues that Documents 38 to 50 are audit reports, the contents of which are generally subjected to more scrutiny and amendments as more information comes to light as a result of wider information sharing as part of an investigation. It does not dispute that the information may become available for disclosure to the public once all investigation and enforcement proceedings have concluded but argues that to release the information now would be premature and would deprive it of the opportunity to have the incident properly investigated “without the risk of a false narrative of the event being perpetuated by certain members of the public without the opportunity to defend against same”. It submits that any adverse finding by a public body such as the planning authority or the EPA that a breach of environmental or planning law has occurred is a serious matter which can lead to prosecution and that, given the publicity which surrounded the incident “there is a real risk of ‘trial by media’ or ‘trial by social media’ if the documents are disclosed, without full context and information on the completion of investigations/proceedings” which “in itself could lead to undue pressure being placed on Donegal County Council which would adversely impact Planree’s access to justice and fair proceedings”.
85. In submissions to this Office, Coillte reiterated that it considered the reference to “course of justice” in article 9(1)(b) to apply to a wider range of scenarios than “extant or nascent legal proceedings of a criminal or civil nature”. It submits that the specific reference to an adverse effect on “disciplinary inquiries” in article 9(1)(b) as demonstrating that “the justice which is in ‘course’ can include a disciplinary matter, or some other similar or analogous process not be a court proceeding” and “the category of included processes is not closed and can plainly include the kind of investigation/enforcement or other proceedings being conducted by various agencies in relation to the peat slide.
86. Coillte submits that it understands there to be current interactions of relevance at play between Planree and various agencies and that there was a continued prospect of action by Donegal County Council and other agencies such as the Loughs Agency against Coillte itself. It therefore submits that there are processes in train in which it and Planree are at risk of having their rights and obligations affected or determined in an adverse manner and that those processes should play out according to the appropriate procedures and rights and obligations of various parties within the respective frameworks of the procedures themselves. It submits that “the reason each process has its own protocols is to ensure the due and fair administration of justice in each case and permitting disclosure of information outside of the process interferes with the ‘ecosystem’ of each process, which is designed to be self-contained and to provide due process for all concerned”.
87. Finally, it submits that “all records relating to preliminary investigations that were concluded following the event and the threat of legal action to include enforcement proceedings are protected by litigation privilege as they were prepared for the purpose of preparing for litigation which is threatened/ongoing”.
88. Recital 16 of the AIE Directive 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”. Article 10(4) of the Regulations provides that the grounds for refusal of a request must be interpreted on a restrictive basis having regard to the public interest served by disclosure. I therefore consider that the scheme of the AIE Regulations and the Directive make it clear that there is a presumption in favour of the release of environmental information and that it is for the public authority seeking to withhold information to establish that it is entitled to do so having regard to the grounds for refusal set out in the Regulations.
89. In order to be satisfied that the ground for refusal set out in article 9(1)(b) applies in this case, I must first consider whether the conditions set out in that article have been satisfied so that the article may be considered to apply on a prima facie basis. If it does, it is then necessary to identify the factors weighing in favour and against disclosure so that it can be determined whether the interest served by refusal outweighs the public interest in disclosure. The findings of the CJEU at paragraph 69 of Land Baden-Württemberg are of particular relevance here:
“…[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”.
I must therefore be satisfied that there is a reasonably foreseeable risk of an adverse impact to the course of justice should the information at issue be released in the circumstances of this case. If I am satisfied that such a risk arises, I must then go on to consider whether the interest to be protected by guarding against that risk outweighs the public interest in disclosure of the information.
90. I accept Coillte’s argument that “course of justice” may apply to more than ongoing Court proceedings. I consider this interpretation to be supported by the wording of the Regulations and the Directive. Article 4(2) of the Directive, which is transposed by article 9(1)(b), specifically notes that an adverse impact on the course of justice includes an adverse impact on the ability of an individual to receive a fair trial or on a public authority to conduct an enquiry of a criminal or disciplinary nature. This might include an adverse impact on an enquiry which has yet to commence but only where the test set out by the CJEU in Land Baden-Württemberg has been established, that is only where it has been shown that the adverse impact in question is reasonably foreseeable as opposed to purely hypothetical. I note that the Aarhus Guide takes a narrow approach to construction of the relevant provision in the Aarhus Convention, interpreting “the course of justice” as referring to “active proceedings within the courts”. However, I also note that the Aarhus Guide, while a source of helpful guidance, is not legally binding or determinative (see RTÉ, paragraph 20).
91. I note in the first instance that my Investigator wrote to each of the entities identified by Coillte and listed at paragraph 79 above, none of whom identified any contemplated or ongoing proceedings or legal actions. The Northern Ireland Environment Agency did note that it was keeping the situation under review but it did not identify any potential adverse impact on the course of justice. It did note that it could not provide detailed comment as it had not had sight of the information at issue. The Agency was informed by the Investigator that it was not the practice of this Office to disclose information directly but that it could contact Coillte to seek any further detail it considered necessary and extended the deadline for submissions to provide it with an opportunity to do so but no further submissions were received. Coillte refers to “processes in train” in which it or Planree “are at risk of having their rights and obligations affected/determined in an adverse manner” without providing any further detail on those processes. It argues that those processes “should be determined in each case by reference to the rules and procedures applicable to each process and should not be overridden, interfered or side-stepped by means of disclosure under this AIE Request” without giving any indication of how release of the information requested might override, interfere with or sidestep those processes. Such arguments appear to me to fall more in the realm of the purely hypothetical than the reasonably foreseeable.
92. Planree acknowledges that the information may be made publicly available “once all investigation and enforcement proceedings have been concluded”. However, the only ongoing proceedings appear to be the High Court proceedings it has referred to. Those High Court proceedings are not referred to by Coillte in its submissions but Planree refers to those proceedings as evidence of the potential reputational impact of release of the information at issue while also appearing to suggest that release may lead to a trial by media which, presumably, it considers might impact the fairness of any trial or proceedings. Any reputational impact for Planree arising from release, while it may be adverse, is only relevant insofar as it would have an adverse impact on the course of justice. Planree does not however provide any further detail as to the nature of the adverse impact on the course of justice which might occur were the information at issue to be released, nor does it provide a basis upon which to conclude that such impact is reasonably foreseeable as opposed to purely hypothetical. I note in this regard that the High Court judge is not likely to look outside the evidence presented to them in a courtroom when reaching their verdict on a case and, indeed, their decision would be appealable were they to do so.In addition, it is now commonplace for judges to have to consider cases where there is significant public interest and comment on both traditional and social media. I also consider Planree’s argument that the release of information may lead to a trial by media which might in turn place undue pressure on Donegal County Council to make a decision which would adversely impact its entitlement to justice and fairness to be more in the realm of the purely hypothetical rather than the reasonably foreseeable. Any course of action taken by the Council would be open to challenge if it were based on improper considerations, did not take sufficient account of fair procedures requirements or did not have an adequate legal basis and the same would apply to any enforcement or prosecution action taken by a public authority. In addition, those enforcement proceedings or prosecutions would take place in a court setting based on the production of evidence in accordance with the rules of evidence and in which each party would have the benefit of fair procedures protections. In those circumstances, I also find Planree’s suggestion that release of the information would risk the creation of a “false narrative” by certain members of the public against which it would have no opportunity to defend itself to again be more hypothetical than reasonably foreseeable.
93. With regard to Coillte’s suggestion that “all records relating to preliminary investigations that were conducted following the event and the threat of legal action to include enforcement proceedings” are protected by litigation privilege, I note in the first instance that Coillte has failed to precisely identify the records and the proceedings to which it refers. It submits that those records include “for instance, internal communications in light of the threat of legal proceedings (records 11 to 16)” but does not provide a complete list of the records in question. However, it does note in its submissions regarding article 8(a)(iv) that it considers Documents 11 to 16 along with Documents 31 to 50 to be protected by legal professional privilege so I will assume that these are the “records relating to preliminary investigations” to which Coillte refers. I note however that Documents 11 to 16 were not originally referred to by Coillte as those for which article 9(1)(b) provided grounds for refusal. It referred only to Documents 21 to 52.
94. In addition, as the High Court found in UCC, the following principles must be borne in mind when considering the application of litigation privilege:
(i) Litigation privilege constitutes a potential restriction and a diminution of a full disclosure, both prior to and during the course of legal proceedings which is desirable for the purpose of ascertaining truth and rendering justice. As such, it must be constrained (Smurfit Paribas v AAB Export Finance [1990] 1 IR 469 per Finlay CJ at p 477).
(ii) The purpose of litigation privilege is to aid the administration of justice, not to impede it. In general, justice will be best served where there is candour and where all relevant documentary evidence is available (Gallagher v Stanley [1998] 2 IR 267 per O’Flaherty J at p 271).
(iii) The document must have been created when litigation is apprehended or threatened.
(iv) The document must have been created for the dominant purpose of the apprehended or threated litigation; it is not sufficient that the document has two equal purposes, one of which is apprehended or threatened litigation (Gallagher v Stanley [1998] 2 IR 267 at p 274 approving the test propounded by the House of Lords in Waugh v British Railways Board [1980] AC 521).
(v) The dominant purpose of the document is a matter for objective determination by the Court in all the circumstances and does not only depend upon the motivation of the person who caused the document to be created (Gallagher v Stanley and Woori Bank & Hanvit LSP Finance Ltd v KDB Bank Ireland Ltd [2005] IEHC 451).
(vi) 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 obtain legal advice or enable his solicitor to prosecute or defend an action (Woori Bank and Downey v Murray [1988] NI 600).
95. As noted by the High Court, it is for the entity asserting privilege to demonstrate that the dominant purpose for which the documents were brought into existence was to obtain legal advice or enable its solicitor to prosecute or defend an action. I am not satisfied that Coillte has done so in this case. In particular, I consider it would be difficult for me to reach a conclusion that the dominant purpose of the preparation of documents was pending litigation in circumstances where such litigation has yet to materialise almost three years after the event. I note that High Court proceedings are ongoing but those proceedings involve Planree not Coillte and Planree have not asserted legal privilege over any of the information at issue. It appears to me, for instance, that the dominant purpose of Documents 11 to 15 are to respond to a member of the public in which he refers to the impact he considers the peat slide to have had on his property. Similarly, the dominant purpose of Document 16 seems to be the preparation of a response to a query from a member of the Oireachtas in relation to the peat slide. Documents 31 to 37 were prepared by or on behalf of Planree, who have not asserted privilege over them. Documents 38 to 50 are monitoring records, the purpose of which appears to me to monitor the condition of the site in the aftermath of the peat slide and not apprehended or threatened litigation.
96. I am therefore not satisfied that there is a reasonably foreseeable basis on which to conclude that release of the December 2020 Correspondence, Documents 11 to 16 or Documents 21 to 52 would have a reasonably foreseeable adverse impact on the course of justice. It is therefore not necessary for me to go on to consider the public interest test with respect to article 9(1)(b).
Application of article 9(2)(d)
97. Article 9(2)(d) 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 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.
98. The internal communications exception was considered in further detail by the CJEU in its decision in Land Baden-Württemberg which I have referred to at paragraph 88 above. 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”.
99. The CJEU went on to find 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”.
100. Finally, it made it clear, as outlined in paragraph 88 above, that a public authority seeking to rely on article 9(2)(d) must establish a reasonably foreseeable risk that disclosure of the information could specifically and actually undermine the interest being protected through reliance on that article.
101. In addition, articles 10(3) and 10(4) of the Regulations make it clear that public authorities must consider each request on an individual basis, interpreting the grounds for refusal restrictively with regard to the public interest in disclosure and weighing the public interest served by disclosure against the interest served by refusal.
102. In order to be satisfied that the exception contained at article 9(2)(d) provides grounds for refusal of the information at issue, I must firstly be satisfied that this information constitutes “internal communications” as defined by the CJEU in Land Baden-Württemberg. I must then be satisfied that there is a reasonably foreseeable risk that disclosure of those documents would undermine the interest sought to be protected by the exception. Finally, I must be satisfied that the interest in guarding against that reasonably foreseeable risk by withholding this information, is greater than the public interest in the release of the information.
103. Coillte relies on article 9(2)(d) to refuse access to Documents 1 to 20. However in subsequent submissions to this Office it agreed that the environmental information contained in Documents 1 and 14 relating to the peat slide was “innocuous” and could be released.
104. It also acknowledged that Documents 6, 8 to 10, 18 and 19, which consist of updates to the Board or discussions by Board members or executives in respect of the peat slide, include “only brief mention of Meenbog or only high-level reference to the event” but submitted that these were nonetheless internal communications and that it was important that these not be disclosed in order to preserve its private thinking space. It submits that release of the withheld information would have an adverse impact on the confidentiality of its internal communications and that it is important that a confidential space for discussion be permitted. It submits that article 9(2)(d) is intended to facilitate full, free and frank discussions internally prior to the making of decisions and that the opening up of these communications to the outside world would cause harm to Coillte’s ability to conduct its operations and perform its core functions effectively and optimally.
105. Planree argues that Coillte is also entitled to rely on article 9(2)(d) to refuse access to Documents 40 to 50 as these contain site visit information recorded by Coillte employees as part of their investigations. It submits that such employees should be entitled to carry out their duties, without fear of public disclosure, until the conclusion of the investigation and proceedings. Coillte has not sought to rely on article 9(2)(d) to refuse access to Documents 40 to 50.
106. It is not necessary for me to consider Document 1 or Document 14 as Coillte has indicated it no longer has an objection to release of these documents. I accept that Documents 2 to 10, 12 and 13 and Documents 15 to 20 fall within the definition of “internal communications” set out by the CJEU in Land Baden-Württemberg as they consist of emails between Coillte staff members attaching or discussing draft responses to external queries, the contents of reports and agendas for meetings. Documents 2, 3, 13, 17, 19 and 20 contain statements or replies to be issued externally by Coillte to the public, individual members of the public or members of the Oireachtas but I accept Coillte’s argument that “discussions and draft communications arising from and in preparation for its appearance before the Oireactas Committee are not the same as matters of public record” since “matters contained in the draft documents could be very different in nature to what was actually discussed in open session or open correspondence”. It submits that the final letter sent to the member of the Oireachtas was not the same as the draft correspondence circulated among Coillte officers and staff members for input.
107. The last two emails in the chain of Document 11 are internal communications however the remaining emails are between a member of the public and an officer of Coillte and therefore cannot be characterised as internal communications. The same is true of Document 12, with only the last four emails in the chain being internal communications and only the last three emails in Document 15 and the last two in Document 16 falling within that definition. Coillte submits that it “has no difficulty with the release of internal communications regarding responding to the request from the public and who is the appropriate person in Coillte to prepare the response” but submits that “its internal communications regarding the substantive response are entitled to be withheld under article 9(2)(d)”. Coillte has not identified the precise information to which it refers however.
108. With the exception of those emails referred to at paragraph 106 above, contained in Documents 11, 12, 15 and 16, I am satisfied that Documents 2 to 13 and Documents 15 to 20 satisfy the definition of “internal communications” set out by the CJEU in Land Baden-Württemberg.
109. The next question for me to consider is whether a reasonably foreseeable risk that disclosure of the information could specifically and actually undermine the interest being protected through reliance on article 9(2)(d) has been established.
110. The risk identified by Coillte is a general impact on its private thinking space. It argues that release of the information at issue would have an adverse effect on the confidentiality of its internal communications and that it is important that a confidential space for discussion be permitted. It submits that “the opening up of these communications to the outside world would cause harm to its ability to conduct its operations and perform its core functions effectively and optimally, given the importance of open full, free and frank internal discussion, and the benefits that these things, and having the necessary space to think in private, give rise to”.
111. It is true that article 4(1)(e) of the AIE Directive (which article 9(2)(d) transposes) is designed to acknowledge “that public authorities should have the necessary space to think in private” (see Proposal for a Directive of the European Parliament and of the Council on public access to environmental information /* COM/2000/0402 final - COD 2000/0169 */ ).
112. However, the Commission also considered that “in each such case, the public interest served by the disclosure of such information should be taken into account”. In addition, the CJEU in Land Baden-Württemberg makes it clear that general assertions are not sufficient to justify refusal and it must be established how disclosure of the information at issue could specifically and actually undermine the private thinking space in the particular circumstances of the case.
113. I do accept that there is a public interest in avoiding a chilling effect on full and frank discussion by public authorities before they make decisions. However, if I were to accept that a general chilling effect were sufficient that would amount to a blanket exception from disclosure for all internal communications which I consider to be contrary to the presumption in favour of disclosure of environmental information and to the tenor of the judgment in Land Baden-Württemberg. The exemptions to the AIE regime must therefore be interpreted on a restrictive basis (article 10(4)), each request must be considered by the public authority on an individual basis and the public interest in release can overrule the interest served by the exemption. Coillte has not provided detailed arguments as to how release of the specific information at issue in this case would undermine its private thinking space.
114. At this juncture, I think it is appropriate to again have regard to the findings of the CJEU in Land Baden-Württemberg at paragraphs 57 to 60, 64 and 65:
“The lack of temporal limitation on the scope of [the internal communications exception] tallies with its objective…namely the creation, for public authorities, of a protected space in order to engage in reflection and to pursue internal discussions. As the Advocate General has observed…in order to determine whether the need to protect the freedom of thought of the people behind the communication concerned and the ability to exchange views freely continues to exist, account should be taken of all the factual and legal circumstances of the case on the date on which the competent authorities have to take a decision on the request which has been made to them, since, as is clear from paragraph 34 of the judgment of 16 December 2010, Stichting Natuur en Milieu and Others (C 266/09, EU:C:2010:779), the right of access to environmental information crystallises on that date.
Whilst it is true that the [internal communications exception] is not limited in time, it is apparent, however, from that provision itself and the second subparagraph of Article 4(2) of the directive that refusal of access to environmental information must always be founded on a weighing of the interests involved.
It is clear from the Court’s case-law that the interests must be weighed on the basis of an actual and specific examination of each situation brought before the competent authorities in connection with the request for access to environmental information made on the basis of [the AIE Directive]….
In the case of [the internal communications exception], that examination is especially important since the material scope of the exception to the right of access to environmental information which that provision lays down for internal documents is particularly broad. Thus, in order not to render [the AIE Directive] meaningless, the weighing of the interests involved that is required in Article 4(1)(e) [i.e. the internal communications exception] and the second subparagraph of Article 4(2) of the directive must be tightly controlled.
[…]
In addition, public authorities to which a request for access to environmental information contained in an internal communication has been made must take into account the time that has passed since that communication and the information that it contains were drawn up. The [internal communications exception] to the right of access to information can apply only for the period during which protection is justified in the light of the content of such a communication…
In particular, if, in light of the objective of creating, for public authorities, a protected space in order to engage in reflection and pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up…”.
115. To these observations must be added those of the High Court at paragraph 18 of its judgment in M50:
“The inclusion of the words ‘in accordance with these Regulations’ in Article 12(5) [of the AIE Regulations] makes clear that the provisions of [the AIE Regulations] which refer to a ‘public authority’, such as the provisions of Articles 9 and 10, apply equally to the [Commissioner]. For present purposes this means that the provisions of Articles 9(1)(c) and Article 10(3) apply to reviews conducted by the [Commissioner], following receipt of an appeal. It is also clear from the contents of Article 12 of the [AIE Regulations], that the [Commissioner] enjoys a wide jurisdiction to conduct a de novo consideration of a request for access to environmental information. Article 12(6) sets out the [Commissioner’s] entitlement to require a public authority, inter alia, to make environmental information available, whereas subs. (7) mandates compliance by a public authority with a decision of the [Commissioner] under subs. (5) within three weeks. Subsection (8) allows the [Commissioner] to apply to the High Court for an order directing a public authority to comply with a decision, whereas subs. (9) entitles the [Commissioner] to refer any question of law to the High Court and subs. 10 deals with staff and resources available to the [Commissioner]”.
116. This means that I must interpret the references made by the CJEU to the requirement for the competent authority to take account of “all the factual and legal circumstances of the case on the date on which the competent authorities have to take a decision on the request which has been made to them” as requiring me to consider the circumstances of the case at the time of this appeal.
117. In my view, the guidance of the CJEU makes clear that close attention must be paid to the particular facts of a case and the particular information at issue. The decisive factor, therefore, is the particular circumstances of the case and the information at issue. If it were not, as the CJEU points out in Land Baden-Württemberg, the scope of the internal communications exception would be so broad as to render much of the AIE regime meaningless.
118. In that respect, I think it is important to make some observations on the contents of the information at issue. Again, I must bear in mind that it is not the function of my Office to disclose information, meaning that the detail that I can give about the content of the documents and the extent to which I can describe certain matters in my analysis is limited.
119. In my view, the content in Document 2 is largely factual in nature. It sets out what information is currently available about the incidents in question and there is no discussion among staff members as to its content. The same can be said in my view of Document 3.
120. Document 4 contains discussion among Coillte staff which in my view does give rise to the question of potential impact on Coillte’s “private thinking space”. It discusses the Meenbog incident directly as well as other projects which appear to have connections or common links with Meenbog. I am satisfied that disclosure of Document 4 would have an adverse impact on Coillte’s private thinking space and may lead to a reluctance among Coillte staff in the future to formally draw links between separate incidents and consider the impact of those incidents from a wider strategic perspective. Document 7 continues the email chain which commences in Document 4. However, I consider that any adverse impact from disclosure would only arise in respect of the emails also contained in Document 4 and two additional emails in the chain. I cannot see how any adverse impact would arise were the last three emails in the chain to be released (i.e. those of 20 November 2020 from 7:11pm onwards).
121. Document 5 lists questions received by Coillte at an Oireachtas Committee meeting, many of which I have determined to be out of scope as well as a follow up direction to a staff member in relation to those comments. I cannot see that any adverse impact would arise from its disclosure. Document 6 contains high level reference to Meenbog and again I cannot see how its disclosure would adversely impact Coillte’s private thinking space.
122. The portion of Document 8 which I consider to be in scope contains only a high level reference to Meenbog and I do not agree that its disclosure would have any adverse impact on Coillte’s private thinking space. Document 9 contains a high level update to the Board on Meenbog along with a cover email and again I do not see how any adverse impact to Coillte’s private thinking space arises from its release.
123. Document 10 is an internal communication between Coillte Board members however the discussion is high level and I do not believe that its disclosure would adversely impact Coillte’s private thinking space.
124. As I have noted above, only the last two emails in the chain making up Document 11 may be considered “internal communications” (i.e those of 7 December 2020 from 15:02). Those emails are high level containing a request from a Coillte officer to another staff member and I do not consider their release would have an adverse impact on Coillte’s private thinking space. I consider the same to apply to the last four emails in the chain of Document 12 (two of which are the same as those in Document 11) and to the last two emails on the chain of Documents 15 and 16 (i.e. those of 9 December 2020 at 12:50, 10:22 and 9:34). The third last email in the chain of Document 15 (dated 9 December 2020 at 8:28) does contain an instruction from the Coillte officer that does raise the question as to whether refusal would prima facie be justified to protect the private thinking space but I consider the instruction to be relatively high level and note that article 10(4) requires a restrictive interpretation of grounds for refusal so, in those circumstances, I do not consider a prima facie basis for refusal to arise.
125. Document 13 consists of an email between a Coillte officer and a member of the executive along with a draft response to a query from a member of the public and a description of the background to the Meenbog incident. The background is largely factual and I do not think disclosure would adversely impact Coillte’s private thinking space. Nor do I consider that disclosure of the draft email would have such an adverse impact in circumstances where the email is largely factual, there is no other draft with which it could be compared which might reveal the thought-process behind its preparation and the cover email sending it on specifically notes that the chain of correspondence may be subject to disclosure under AIE. Potential disclosure was therefore in the mind of the sender so it cannot be said that disclosure would give rise to any chilling effect.
126. Documents 17 and 20 contain draft responses to a query raised by a member of the Oireachtas. The cover emails in both documents simply outline that draft correspondence is attached and I do not consider that disclosure of these emails would adversely impact Coillte’s private thinking space. I accept that from a general perspective disclosure of draft documents does impact on the private thinking space of a public authority. However, in this case, the draft documents contain relatively high level and factual information about the background to Coillte’s involvement in Meenbog, its policies in relation to community engagement and Coillte’s knowledge of future plans with regard to the Meenbog development. It does not contain any commentary or opinion on the draft or any indication of Coillte’s strategy or the thinking behind the response. I do not consider, having regard to the information at issue, and the specific circumstances of the case, that disclosure of Documents 17 and 20 would give rise to an adverse impact on Coillte’s private thinking space.
127. Document 18, similarly to Document 9, contains a high level update to the Board on Meenbog along with a cover email and again I do not see how any adverse impact to Coillte’s private thinking space arises from its release.
128. Document 19 contains an attachment of an excerpt from the CEO Report as well as a cover email asking the recipient to review. The excerpt in question is largely factual in nature and I do not consider that its disclosure or the disclosure of the cover email which contains what I would consider to be run-of-the-mill instructions, would adversely impact Coillte’s private thinking space.
129. Although Coillte has not relied on article 9(2)(d) to justify refusal of Documents 40 to 50, I will consider whether that article provides grounds for refusal of those documents since the issue has been raised by Planree, the developer, whose interests may be impacted by their release.
130. In response to enquiries from the Investigator, Coillte have confirmed that Documents 40 to 50, which are monitoring or audit records prepared by Coillte staff members following site visits, were shared with Planree Limited after the site meeting to which each document refers. Documents 40 to 50 are therefore not internal communications, as they have not been maintained at all times within Coillte’s internal sphere. Article 9(2)(d) cannot therefore provide grounds for their refusal.
131. I therefore consider that it is only in respect of Document 4 and the excerpts of Document 7 as identified at paragraph 119 above that it can be said that disclosure gives rise to a specific, actual and reasonably foreseeable risk that Coillte’s private thinking space would be undermined. That is not the end of the matter however and I must now go on to consider whether the interest in guarding against that risk outweighs the public interest in disclosure of those excerpts.
132. Coillte has carried out a composite balancing exercise for all of the grounds for refusal on which it relies but I refer only to those which appear to me to be of relevance to the application of article 9(2)(d). It identifies one factor favouring release which is the public interest in members of the public having access, to the greatest extent possible, to environmental information to which they are entitled under the AIE Regulations. It identifies the public interest in preventing the disclosure of internal communications as a factor against release along with the public interest in State, State-owned and commercial entities being able to pursue legitimate interests without fear of suffering commercially, or otherwise, as a result of disclosure of sensitive information.
133. Planree submits that release is not in the public interest. Again it has carried out a composite test for all grounds but some of the reasons provided include that records relating to ongoing enforcement investigations are not typically made available to the public as well as a number of other reasons which relate to enforcement proceedings and ongoing investigations.
134. In considering the public interest served by disclosure, I am mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” As such, the AIE regime recognises a very strong public interest in openness and transparency in relation to environmental decision-making. There is undoubtedly a strong public interest in transparency as to how public authorities, such as Coillte, carry out their functions with regard to environmental factors. There is also a strong public interest in the availability of information relating to Coillte’s disposal of land generally. As the Court of Appeal noted in Redmond the transfer of lands out of the ownership of a public authority such as Coillte, which is subject to statutory duties in respect of the management of those lands, into the ownership and control of a private owner who is not so subject, and whose approach to the management and exploitation of the assets being acquired may be quite different to that of Coillte, might give rise to concern as to the potential impact on the environment (see paragraph 73) and there is a public interest in information being made available in relation to such transfers to improve awareness, a free exchange of views and more effective participation by the public in terms of the environmental decision-making surrounding them. In this particular case, there is a public interest in access to information relating to the Meenbog landslide, including the background to the transfer and the reaction of Coillte in the aftermath of the event, as this will inform public debate on future policies and projects which involve the transfer of lands from Coillte’s ownership and control. Documents 4 and 7 contain information on Coillte’s reaction to the landslide, both in terms of particular actions on the Meenbog site itself but also in terms of Coillte’s strategy generally or as it applies to other projects. Although the detail contained in those documents is relatively high level it does provide an indication of the steps being taken by Coillte to deal with the Meenbog landslide and landslides generally, which I do not consider is provided by any of the other documents to be released in this case. There is a public interest in making this specific information accessible so that the public can be aware of Coillte’s reaction to the landslide and engage in debate, discussion or formulate other responses to that reaction, particularly since Coillte is responsible for the management of approximately 7% of the country’s land consisting of roughly 440,000 hectares of forests and lands including wild bogs, mountains and beaches. That is, in my view, the underlying purpose of the Regulations and Directive as Recital 1 of the Directive makes clear.
135. On the other hand, as outlined above, the interest served by the refusal in this case is the interest in maintaining Coillte’s private thinking space, as recognised by the CJEU in Land Baden-Württemberg and the European Commission in its Proposal for the AIE Directive. The purpose of allowing public authorities space to think in private is to encourage robust debate and consideration before a decision is taken. Staff of public authorities, and particularly junior staff, should not be discouraged from making their views known and contributing to discussion and debate concerning environmental decision-making and this may occur were those views to be made publicly known and to become the subject of public debate. Some of the matters discussed in the emails in Documents 4 and 7 appear to be of a commercial nature and involve the spending of public monies and there is an interest in promoting robust internal discussion and debate in respect of such matters. It is also in the public interest that Coillte would be encouraged to debate and contemplate matters which involve a balance between commercial and environmental concerns as appears to be the case in the discussions contained in these documents. However, I note in this regard, as outlined above, that the discussion in Documents 4 and 7 is a relatively high level discussion which involves senior staff members communicating in the form of fairly general questions and responses which, while they do provide some insight into Coillte’s response to the issue of Meenbog particularly and landslides generally, communicate what appears to be an almost decided approach without revealing information as to the precise steps taken to get to that approach such as the detailed opinions of specific staff members or details of any debate as to the appropriate approach.
136. I am also mindful of the CJEU’s instruction in Land Baden-Württemberg that the weighing of the interests when applying the internal communications exception must be tightly controlled and that regard must be had to the time that has passed since that communication and the information that it contains were drawn up. I note in this regard that almost three years have passed since the communications in Documents 4 and 7 were issued and although they do contain details of discussions around existing actions around Meenbog and future strategy, the level of detail they contain is not overly extensive. For this reason, I believethe sensitivity of the documents is such that the interest in withholding them to protect Coillte’s private thinking space is outweighed by the public interest in their disclosure.
137. I am therefore not satisfied that article 9(2)(d) may be relied upon to justify refusal of Documents 4 and the relevant parts of Document 7.
Third Party Submissions
138. The majority of the submissions made by third parties (other than Planree) to this Office focussed on the existence of legal proceedings and have been dealt with in my analysis of article 9(1)(b) above. However, as well as providing its position in relation to legal proceedings, Northern Ireland Water, in its submissions, requested that any details of the Derg Water Treatment Works referred to in the information requested, such as abstraction points or treatment works information, be withheld on the basis of article 9(1)(a) on the basis that their disclosure might adversely impact public security or national defence. It also asked that personal data of its staff members be redacted on the basis of article 4(2)(f) of the Directive (transposed by article 8(a)(i) of the Regulations). Having reviewed the information in question, I do not believe it to contain any personal data of NI Water staff nor any details of the Derg Water Treatment Works. I note however that since article 10(1) applies, there is no basis to rely on article 8(a)(i) to redact the personal information of NI Water staff even if I am incorrect in my conclusion that the information requested does not contain such data. If I am wrong in my conclusion regarding details of the Derg Water Treatment Works, such information may be considered outside the scope of my direction to release (contained at paragraph 138 below) and I direct Coillte to consult with NI Water before making a decision in relation to the release of such information and to provide detailed reasoning to the appellant in the event that any such information is withheld.
139. Having carried out a review under article 12(5) of the AIE Regulations, I annul Coillte’s decision. I find that articles 8(a)(i), 8(a)(ii), 8(a)(iv) and 9(1)(c) do not provide grounds for refusal of the documents in respect of which they have been relied in circumstances where the request is one which relates to information on emissions into the environment such that article 10(1) applies. I find that article 9(1)(b) does not provide grounds for refusal of the December 2020 Correspondence, Documents 11 to 16 or Documents 21 to 52 as no adverse impact on the course of justice has been established. I find that article 9(2)(d) does not provide grounds for refusal of Documents 1 to 3, 5, 6, and 8 to 20 and Documents 40 to 50 as no reasonably foreseeable risk that release of these documents would undermine Coillte’s private thinking space has been established. I find that it has been established that it is reasonably foreseeable that disclosure of Document 4 and parts of Document 7 would undermine the private thinking space which article 9(2)(d) is designed to protect but that the public interest in disclosure of those documents outweighs the interest in protecting that private thinking space. I direct release of the documents I have found to be within the scope of the request. As outlined in paragraph 137 above this direction does not extend to information containing details of the Derg Water Treatment Works and Coillte should consult NI Water before making a decision as to release of such information. In addition, the appellant has confirmed that he does not wish to be provided with personal information relating to the member of the public referenced in the email chains captured in Documents 11, 12, 15 and 16 such that these can be considered outside the scope of his appeal and not subject to my direction to release.
140. 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