Decision
Ms H and Irish Aviation Authority
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-127739-F6N9X8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-127739-F6N9X8
Published on
Whether or not the Irish Aviation Authority dealt with the request in accordance with Articles 3(4) and 4 (5) of the AIE Regulations
1. On 17 May 2022 the appellant made a request to the Irish Aviation Authority under the AIE Regulations in the following terms:
“A copy of the report prepared by the Air Traffic Controllers on the R116 crash at Blacksod Bay in March 2017. I am requesting a copy of this report under the Access to Information on the environment regulations on the basis to see what role environmental factors such as weather conditions, geographic location, air traffic conditions etc., contributed to this accident.
I am also requesting all written correspondence including e-mails, faxes, letters, memos, text messages including those on social messaging apps such as Whatsapp, to do with this report and its findings under the same regulations.”
2. On 14 June 2022, the IAA wrote to the appellant advising them that due to the complexity of the appellant’s request it would not be possible to make a decision on their request within the standard one-month timeframe. The IAA extended the timeframe for dealing with the appellant’s request by one month. The IAA advised the appellant that it would notify them of its decision no later than 17 July 2022.
3. On 17 July 2022 the IAA responded by supplying the appellant with a report and stated that the requested information was included in this report.
4. On 26 July 2022, the appellant requested an internal review. The appellant stated that the report that issued was the final Irish Aviation Authority report and not the Air Traffic Controllers’ report as requested.
5. On 25 August 2022, the IAA replied to the appellant affirming the original decision on the basis that operational data is protected under regulation 376/2014. Regulation 376 of 2014 is a European Union Regulation concerning the reporting, analysis and follow up of occurrences in civil aviation. The IAA confirmed that the Air Accident Investigation Unit is the competent authority for the State and that it is the appropriate body from which any such information should be requested.
6. The appellant brought an appeal to this Office on 30 August 2022.
7. I am directed by the Commissioner for Environmental Information to carry out a review of this matter under article 12(5) of the Regulations. I have had regard to:
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, the Commissioner’s role is to review the public authority’s internal review decision and to affirm, annul or vary it.
10. The scope of this review is confined to whether or not the request has been dealt with in accordance with Articles 3(4) and 4(5) of the AIE Directive.
11. This office has been unable to carry out a thorough review in this case due to the absence of engagement by the IAA. I understand that the Government’s aviation regulation reform initiative involves the establishment of a single national civil aviation regulator and this has resulted in the IAA merging with the Commission for Aviation Regulation during the course of this investigation. This has led to some internal transfer of functions. However, as set out in further detail below, the level of engagement in relation to this appeal has been unacceptable. This is particularly so, given the sensitivity of the background to the reports, which are the subject of this request. Indeed, it is not the usual practice of this Office to extend so many opportunities to make submissions on a case to a public authority. However, in circumstances where this Office had no knowledge of the content of the requested report, the Investigator was left with little choice but to continually pursue contact with the IAA.
12. The Commissioner expects the IAA to take steps to engage more fully with this office and with its obligations under the AIE Regulations.
13. In their appeal to this office, the appellant states that they requested a full copy of the Air Traffic Control Report and not for a second report, which may have used some of the Air Traffic Control findings to come to its own separate conclusions. The appellant maintains that the report prepared by the Air Traffic Control is a completely separate report to the IAA report and it is not disclosed in its entirety in the IAA report.
14. On 20 September 2022, this office wrote to the AIE Officer in the IAA and requested a copy of all of the records which were the subject of the request. This Office also invited the IAA to confirm the relevant provisions of the AIE Regulations on which the refusal was based. No response was received.
15. On 17 October 2022, a reminder was issued to the IAA. This prompted a phone call to this office from the IAA, in which the IAA stated that the process for obtaining access to such data is contained within article 11 of EU Regulation 376/2014. The IAA also reiterated that the AAIU are the accident authority for the state and that are the appropriate body to request any such information from.
16. On 28 February 2023, the investigator assigned to this case wrote to the IAA, inviting it to make submissions in support of its decision. The Investigator also requested a copy of the Air Traffic Controller report and sought confirmation as to why the release of such information may be exempt under AIE Regulations.
17. On 29 March 2023, a second request was sent to the IAA, seeking confirmation as to whether the IAA would be making a submission in this case.
18. On 25 May 2023, the investigator wrote to the IAA inviting them to make submissions as outlined in the correspondence of 28 February 2023.
19. On 6 June 2023, the AIE officer made contact requesting a phone call to discuss the case. The investigator responded by requesting the AIE officers contact phone number in order to facilitate the call and no response was received. No further contact was made by the IAA.
20. In its internal review, the IAA stated that operational data is protected under Regulation 376/2014, where its appropriate use and access to same is outlined. It has not cited or explained on what grounds pursuant to the AIE Regulations it has refused to release the requested information, or the reasons for such refusal.
21. Public authorities have an obligation under the AIE Directive and the AIE Regulations to provide reasons to an applicant for the refusal of an AIE request. Recital (16) of the AIE Directive provides that “…The reasons for a refusal should be provided to the applicant within the time limit laid down in this Directive.” These provisions have been implemented in Ireland in articles 7(3) and (4)(c) and 11(4)(a) of the AIE Regulations, which require a public authority to provide reasons for refusal both at decision and internal review stage.
22. Also of note is article 10 of the AIE Regulations, which provides in paragraphs (3)-(5): “(3) The public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. (4) The grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by the disclose. (5) Nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
23. Case law has provided some helpful commentary in recent years regarding the statutory obligations concerning the duty to give reasons, as laid out above. In particular, the judgement of the High Court in Right to Know v An Taoiseach [2018] IEHC 372 notes that a public authority may refuse access to environmental information only where the requirements of the AIE Regulations have been substantively and procedurally adhered to (paragraph 80). In that case the Court held that if an AIE request is to be refused on the grounds permitted in the Directive, it must be justified via the processes set out in the Directive, as replicated in the AIE Regulations (paragraph 83).
24. In particular, the High Court stated that article 10(3), (4) and (5) mandates a public authority to:
25. The Court held that the absence of any indicator in the review decision that the exercise mandated by article 10(3), (4) and (5) had been carried out, suggested that no balancing exercise had been carried out (paragraph 87). The Court held that the Department of An Taoiseach’s internal review decision did not comply with the requirements of the AIE Directive as it had not considered the public interest in favour of disclosure (paragraph 88-89).
26. I believe this illustrates that the obligations on the public authority are clearly set out in statute and expanded on in case law. It now falls to me to consider whether the IAA has discharged its statutory duty in this regard in this appellant’s case.
27. Taking into account the AIE legislation and relevant case law, in this appeal to the OCEI, I am not satisfied that the IAA has substantively and procedurally complied with the requirements of Articles 3 and 5 of the AIE directive, as implemented by the AIE Regulations in articles 7(3) and (4), 11 (4) and 10(3), (4) and (5) as set out above. I have come to this conclusion based on the following:
28. In Right to Know v An Taoiseach the Court cited RPS v Kildare County Council [2016] IEHC 113 in relation to the purpose of a right to reasons. The recognition of a legal right to reasons, as a matter of natural justice, constitutional law, under the ECHR, and in EU law, reflects and serves a range of important policy objectives. In summary, reasons enable a person to know whether there are grounds to challenge the decision; enable the decision to be effectively reviewed when challenged; encourage and support better administrative decision-making; and act as a promoter of transparency and a deterrent to arbitrary administrative action or malpractice. For the reasons explained above, I am satisfied that the request has not been dealt with in accordance with Articles 3(4) and 4(5) of the Directive as the IAA has:
29. The IAA must comply with the AIE Regulations and should immediately put in place appropriate measures to ensure proper engagement with requesters and with this Office in relation to AIE appeals.
30. In the absence of engagement with this Office’s queries under the AIE process, it is also not possible to know the content or the sensitive nature of this report. It may compromise third party information, on which those third parties have not been afforded an opportunity to make comments. Therefore, because of the nature of the information sought, I am not in a position to direct release of the information in this case. I understand that this is far from satisfactory from the appellant’s perspective; however, the lack of engagement with this Office on the part of the IAA leaves me with no other option in the overall circumstances of the case.
31. Based on the foregoing, I hereby annul the IAA’s decision and remit the matter for fresh consideration by the IAA.I expect that this fresh decision-making progress shall culminate in a decision which complies with the requirements of the AIE Regulations and the AIE Directive.
32. 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.
Deirdre Gallagher, on behalf of the Commissioner for Environmental Information