Decision
Right To Know CLG and Environmental Protection Agency
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-134687-D6K4L1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-134687-D6K4L1
Published on
Whether the EPA was justified, under articles 8(a)(i) of the AIE Regulations, in refusing access to certain information contained in 5 records involving environmental pollution data
17 April 2024
1. On 24 November 2022, the appellant requested the following information from the EPA:
“1) All records provided to the EPA by the EPA contractors running the National Environmental Complaints Line (NECL) for 2022, in the original electronic format as presented to the EPA
2) All records provided to the EPA for 2022 via the "See It, Say It App"
3) All records provided to the EPA for 2022 via the form at the following link use the environmental damage incident form.
4) All summary reports / analysis generated by the EPA on the 2022 data as collected by the NECL, or the other reporting mechanisms above
Note: the above AIE does not request personal names and contact details of complainants”
2. On 23 December 2022, the EPA issued its original decision. It said:
“1. Summary of the Decision
I have identified over 7,000 records relating to your request whose details would have to be retrieved and examined in order to satisfy this request. Due to the nature of the records, it is noted that the majority of these records contain personal information such as Names, Addresses, phone numbers etc. and it is also noted that all personal information contained in each record would have to be redacted before the record could be released. Furthermore, each document would have to be examined by the Office of Environmental Enforcement AIE/FOI unit and it is estimated that it would take the unit at least 140 days to examine and redact these documents and to produce a schedule. Hence the core work of a functional area namely the OEE AIE/FOI unit would be disrupted for months. The OEE AIE/FOI unit would not be able to process any other requests for months. Having considered the volume/range of records which are relevant to your request, it is my opinion that your request is manifestly unreasonable. The examination of the kind of records concerned would place an unreasonable demand on the EPA’s resources that would cause a substantial and unreasonable interference which would disrupt the work of a functional area of the EPA and its ability to perform its core functions. Therefore, I refuse your request, having regard to Article 9(2)(a) of the AIE Regulations.
9(2) A public authority may refuse to make environmental information available where the request- (a) Is manifestly unreasonable having regard to the volume or range of information sought,
2. Public Interest Test
Furthermore, in accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of your request. While there is a very strong public interest in the openness and accountability in relation to the EPA carrying out its environmental functions there is also a very strong public interest in giving the EPA the space and time to carry out its environmental protection functions in allowing the EPA process other AIE requests. I find that the public interest served by disclosure in this case does not outweigh the interests served by refusal.”
3. The appellant responded to the EPA’s original decision on 29 December 2022. They said: “Please note the response appears to address the reasons for refusal of records but does not give a schedule for (4) summary reports/analysis generated by the EPA on the 2022 data as collected by the NECL, or the other reporting mechanisms above. I would have expected that EPA would have generated some sort of aggregated reporting/analysis in addition to the raw data. Can you include a note on (4) so that we can specifically address that point on review/appeal.”
4. The appellant requested an internal review later that day on 29 December 2022. The EPA issued its internal review on 26 January 2023.
“I made a decision on this review on 26th January 2023. Your request for internal review noted the following:
“Please note the response appears to address the reasons for refusal of records but does not give a schedule for (4) summary reports / analysis generated by the EPA on the 2022 data as collected by the NECL, or the other reporting mechanisms above I would have expected that EPA would have generated some sort of aggregated reporting/analysis in addition to the raw data”.
I am varying the decision of the original decision maker by part-granting your request as follows:
1. I have identified 8 records relating to part 4 of your request.
2. Records 1 to 3 relate to the National Environmental Complaints Line (NECL) (3 excel spreadsheets - see Schedule below in Appendix 1). Each spreadsheet consists of 41 columns. I am part-granting these 3 records and excluding certain information in the following columns as the columns contain personal information which would identify a natural person, in accordance with Article 8(a)(i) of the above referenced Regulations. Where information has been redacted from 1-7 columns below, the text “Personal Information Deleted” is inserted into the relevant cell.
1. Where has the rubbish/vehicle dumped? (part-granted)
2. Where is the source of the smell? (part-granted)
3. Where is your location in relation to the source of the smell? (part-granted)
4. Description of issue (part-granted)
5. Where is the source of the noise (part-granted)
6. Where is your location in relation to the noise (part-granted)
7. Where is the pollution occurring? (part-granted)
8. Location of issue (this column fully excluded from spreadsheet)
9. Caller’s name (this column fully excluded from spreadsheet)
10.Callers Address (this column fully excluded from spreadsheet)
11.Eircode (this column fully excluded from spreadsheet)
12. Callers email (this column fully excluded from spreadsheet)
13.Callers Phone (this column fully excluded from spreadsheet)
14.Agent Name (this column fully excluded from spreadsheet)
3. Records 4 and 5 relate to the See it, Say It App (2 excel spreadsheets – see Schedule below in Appendix 1). I am part-granting these 2 records and am fully excluding the following two columns from the 2 records as they contain information which could identify a natural person in accordance with Article 8(a)(i) of the above referenced Regulations. 1. Latitude 2. Longitude
4. Records 6 to 8 consist of three (3) reports which relate to Non-Licensed Complaints (pdf documents – see Schedule below in Appendix 1). I am granting access in full to these three records. Please note that I have identified no records that come within the scope of part 3 of your original request and therefore I am refusing access on the basis that no records exist.
A copy of the relevant Article of the AIE Regulation is included as an Appendix 2 to this letter.
Public interest test
Furthermore, in accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by the part-granting of your request.
Factors in favour of granting access:
• The public interest in individuals being able to exercise their rights under the AIE Regulations to the greatest extent possible in order to access environmental information; and
• The public interest in environmental information being made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information.
Factors in favour of refusing access:
• The public interest in protecting personal information relating to a natural person. The public interest lies with protecting the privacy of individuals. In light of the above, I have determined that the public interest would not be served by disclosing personal information which would identify a natural person.”
5. The appellant appealed to this Office on 20 February 2023.
6. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Environmental Protection Agency. I have also examined the contents of the records at issue. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
9. In its internal review the EPA said it identified 8 records relating to part 4 of the appellant’s original request. It is part-granting the information contained in records 1-5 and agreed to release Records 6 and 7 in full. The appellant confirmed in correspondence to this Office that they are appealing the withheld information in Records 1-5 relating to pollution location data.
10. The appellant has clarified that they are not requesting personal names and contact details of any individual reporting environmental pollution incidents. In records 1, 2 and 3, Column K, which contains information that the EPA is seeking to withhold, is titled: “where is your location in relation to the source of the smell”. Column V is titled: “where is your location in relation to the noise”. As these columns concern location information related to the individuals reporting the environmental pollution, I consider it to be outside of the scope of the appellant’s request.
11. Accordingly, this appeal concerns whether the EPA is justified in withholding environmental pollution location information in relation to Records 1, 2, 3, 4 and 5, on the basis of article 8(a)(i).
Submissions
12. The appellant made the following submission to this Office on 28 January 2023:
“(the appellant) would like to appeal the redactions of pollution location data in the environmental records released under AIE
There are no concerns about the redaction of location data of the citizens reporting environmental pollution, but EPA are going further and they are redacting the locations of the pollution.
This type of location redaction is often seen in other EPA datasets, eg water abstraction, illegal dump register etc
(the appellant) fully agree with the EPA where there is clear public interest in protecting personal information relating to natural persons. The public interest lies with protecting the name, the contact details and address of the individuals reporting the pollution.
But this public interest does not in any way extend to protecting the locations of reported pollution incidents.
There are no individuals identified by the location of pollution as the alleged offender’s personal details are not in the dataset - it is simply a public report on where pollution is seen and reported Therefore, this field should be released
8. Location of issue (this column fully excluded from spreadsheet)
(the appellant) agree these fields should not be released to protect the identities of persons reporting (i.e. are not subject to appeal)
9. Caller’s name (this column fully excluded from spreadsheet)
10.Callers Address (this column fully excluded from spreadsheet)
11.Eircode (this column fully excluded from spreadsheet)
12. Callers email (this column fully excluded from spreadsheet)
13.Callers Phone (this column fully excluded from spreadsheet)
14.Agent Name (this column fully excluded from spreadsheet)
Similarly, EPA should release GIS locations or other location data on pollution incidents where available
1. Latitude
2. Longitude
Again, this is not 'Personal Information Excluded'
There is public interest in citizen access to pollution location data. (The appellant) would urge the active publication of this dataset, including location data. The database is updated daily, as per the records released, and between 3 and 6 new pollution locations are added daily. Open Data and active publication is a more appropriate channel than AIE for the publication of this type of environmental dataset. The release of these location records do not identify the reporter or the offender”
13. The EPA made a submission to this Office on 6 April 2023, which included the following observations:
“Response to Appeal
(the appellant) claims that the EPA is going further than “redacting the location data of the citizens reporting environmental pollution” and I can confirm that this is correct. The EPA has reviewed the information contained in the records and identified all information that is personal information and refused access under Article 8(a)(i). The personal information was set out in the Internal Reviewer’s letter of 26 January 2023. The appellant has not disputed the redactions made in relation to the person reporting the pollution but rather the “pollution location data”. Such information is contained in records 1-3, columns titled:
1. Where has the rubbish/vehicle dumped? (part-granted)
2. Where is the source of the smell? (part-granted)
3. Description of the issue (part-granted)
4. Where is the source of the noise? (part-granted)
5. Where is the pollution occurring? (part-granted)
6. Location of issue (refused and excluded from records)
The information is also contained in records 4 and 5 where two columns titled Longitude and Latitude were refused and excluded from the records.
3 The redacted data contained in the columns specified in the records listed above includes addresses, Eircode data, house locations, property locations that would identify the landowner or alleged polluter, or other information that would identify the reporter/caller.
Confidentiality protected by law
While there is no definition of personal information in the AIE Regulations, the guidance issued by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations states that in applying this exception, public authorities should have regard to the FOI and Data Protection Acts, as well as to any other statutory provisions that may be relevant in the particular case. Where information is protected under these legislative codes, it must also be protected for the purpose of the provisions of the AIE code unless the person concerned consents to its release. It goes on to state that, unless obvious sensitivities are involved or where it would impose an undue burden on the public authority to contact the person concerned, an opportunity should be given to an individual to give consent to the release of personal information before a request for such information is refused. The Freedom of Information Act defines personal information, and that definition includes information relating to any criminal history of, or the commission or alleged commission of any offence by, the individual, and inter alia information relating to property of the individual. Both of these clauses are relevant to the information contained in records 1-5. Access to this personal information is protected under FOI through Section 37(1) which states that “Subject to this section, a head shall refuse to grant an FOI request if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).” There is nothing within the further subsections of Section 37 that would disapply this exemption. In addition to the FOI Act, the Data Protection Commission (DPC), has stated that within the General Data Protection Regulation (GDPR) the term ‘personal data’ means any information concerning or relating to a living person who is either identified or identifiable. The DPC further states that an individual could be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that individual. Having examined records 1-5, the EPA is satisfied that the redacted information contains location data either through description, address, Eircode, longitude or latitude. It is the EPA’s view that this information is therefore also protected under the Data Protection laws.
Consent
The EPA believes that due to the nature of the information contained in the records, and that alleged environmental crimes are at the crux of the documents, there are obvious sensitivities, and that consent could not be sought from the third parties concerned. Notwithstanding this, due to the scale of the request and the number of third parties involved it would be disruptive to the workings of the EPA to engage with each person to gain consent.
Public Interest
The EPA has considered the following factors in favour of granting access to the records:
• There is a public interest in individuals being able to exercise their rights under the AIE Regulations to the greatest extent possible in order to access environmental information.
• The public interest in environmental information being made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information.
• Openness, transparency and accountability in decisions of public authorities. The EPA has considered the following factors in favour of refusing access to the records:
• There is a clear public interest in protecting the privacy of complainants.
• There is a public interest in maintaining personal privacy of third parties particularly where there has been an allegation made, until such time as an appropriate enforcement action has been undertaken.
• The public interest in protecting the ability of public bodies to carry out their functions. On balance, the EPA is of the view that there is a strong argument for the protection of personal data and that the public interest would not be served by releasing the information requested. Considering the above, the EPA confirms its belief that its decision to refuse access to parts of records 1- 5 under Article 8(a)(i) was correct.
14. On 26 February 2024, the appellant made the following submission in response to a query from my Investigator.
“I understand that in some cases redacted entries refer to natural persons, and (the appellant) do not request these records
If EPA can redact location based environmental data then arguably such data is rendered meaningless, e.g. "there's an illegal dump somewhere in Laragh, Wicklow" is no use for anyone in the future who might try to sink a well on that land. So location data should always be released in the format collected, where the location is reported for environmental concerns
(The appellant) is not seeking personal details, so the issue of EPA seeking consent from environmental criminals, or indeed reporters, does not arise
It's hypothetical that a location and location of criminal / reporter is the same, and how would the applicant seeking such records know which ones were reported by the landowner, their agent, neighbours, local authority, LAWPRO, member of the public etc”
15. The EPA seeks to withhold the following information on the basis of article 8(a)(i) of the AIE regulations:
Record 1 – consists of an excel spreadsheet containing data from the National Environmental Complaints Line:
- Column G – “where has the rubbish/vehicle dumped”. The following rows have been redacted: 13, 18, 19, 26, 75 and 104
- Column J – “where is the source of the smell”. The following rows have been redacted: 50, 66, 71, 126, 127, 168
- Column S – “description of the issue”. The following rows have been redacted: 4, 5, 7, 15, 20, 22, 23, 29, 41, 43, 44, 51, 56, 66, 71, 72, 79, 88, 89, 90, 93, 95, 97, 101, 114, 118, 119, 126, 133, 134, 135, 136, 137, 138, 139, 145, 154, 157, 168, 178
- Column U – nothing redacted
- Column Z – “where is the pollution occurring.” The following rows have been redacted 95, 97
- Finally, the column titled “location of issue” has been redacted in its entirety.
Record 2 – consists of an excel spreadsheet containing data from the National Environmental Complaints Line:
- Column G - “where has the rubbish/vehicle dumped”. The following rows have been redacted: 5, 23, 24, 25, 29, 63, 155, 165, 259
- Column J - “where is the source of the smell”. The following rows have been redacted: 47, 108, 126, 146, 201, 230
- Column S – “description of the issue” – the following rows have been redacted: 10, 19, 21, 22, 32, 35, 38, 39, 44, 46, 50, 68, 72, 77, 83, 85, 86, 87, 88, 94, 96, 100, 103, 104, 109, 110, 111, 112, 115, 122, 123, 133, 149, 151, 153, 164, 172, 181, 182, 183, 185, 187, 192, 251, 252, 257, 260, 261
- Column U – “what is the source of the noise” – the following rows have been redacted: 100, 214, 226
- Column Z – “where is the pollution occurring” – the following rows have been reacted: 45, 88
- Finally, the column titled “Location of issue” has been redacted in its entirety.
Record 3 – consists of an excel spreadsheet containing data from the National Environmental Complaints Line:
- Column G - “where has the rubbish/vehicle dumped”. The following rows have been redacted: 37, 86, 110, 111, 123, 128, 129
- Column J - ‘where is the source of the smell”. The following rows have been redacted: 42, 48, 88, 130, 138 ,139, 140, 141, 168, 170, 179, 200, 214, 216, 230, 233, 258, 273, 282, 311, 391
- Column S - “description of the issue”. The following rows have been redacted: 2, 5, 20, 21, 22, 32, 33, 36, 43, 44, 53, 58, 71, 72, 73, 87, 102, 110, 111, 112, 116, 120, 121, 123, 124, 127, 139, 140, 141, 149, 155, 158, 159, 160, 161, 163, 165, 166, 169, 170, 171, 173. 174, 175, 176, 178, 179, 184, 188, 192, 193, 205, 206, 215, 216, 217, 219, 220, 222, 233, 236, 237, 238, 249, 255, 261, 266, 269, 271, 273, 278, 297, 298, 300, 301, 309, 313 322, 331, 332, 338, 344, 348, 354, 364, 365, 366, 367, 371, 372, 373, 379, 381, 388, 393, 395, 397, 399
- Column U - “where is the source of the noise.” The following rows have been redacted: 161, 193, 251, 298 and 354
- Column Z - “where is the pollution.” The following row has been redacted: 116
- Finally, the column titled “Location of issue” has been redacted in its entirety.
Record 4 – consists of an excel spreadsheet containing data from the “See it? Say it!” application.
- Column D - “latitude”. The entire column has been redacted.
- Column E - “longitude”. The entire column has been redacted.
Record 5 – consists of an excel spreadsheet containing data from the “See it? Say it!” application.
- Column D titled “latitude”. The entire column has been redacted.
- Column E titled “longitude”. The entire column has been redacted.
Article 8(a)(i)
16. Article 8(a)(i) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law. This provision seeks to transpose Article 4(2)(f) of the AIE Directive, which in turn is based on Article 4(4)(f) of the Aarhus Convention.
17. Article 8(a)(i) must also be read alongside article 10 of the AIE Regulations. In particular, article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) stipulates that 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.
18. When relying on article 8(a)(i) of the AIE Regulations a public authority must show that:
- the information at issue is personal information relating to a natural person, who has not consented to its disclosure.
- that the confidentiality of that personal data is provided by law;
- that the disclosure of the data at issue would adversely affect that confidentiality. The public authority must demonstrate a clear link between disclosure of the data that has actually been withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
Natural person – records 1, 2 and 3
19. One of the first considerations for a public authority, in ascertaining whether article 8(a)(i) of the AIE Regulations is engaged, is to examine the information at issue to ascertain whether it is personal data relating to a natural person.
20. I have considered the column titled “location of issue” which has been entirely redacted in Records 1, 2 and 3. From reviewing this redacted information I can see some of the entries clearly do not relate to a natural person. Many of the locations provided are general descriptions of locations that could not be pinpointed to any individual natural person, for example, a description of where rubbish was dumped at a forestry entrance, or in an alleyway in an urban location. I accept that some entries in this column in records 1, 2 and 3 appear to relate to a natural person, meaning article 8(a)(i) might be relevant in some instances (subject to article 10). But the EPA seems to have adopted a blanket approach to its refusal of all of the information at issue contained in this column in all three records by claiming that article 8(a)(i) applies to all of the information concerned, regardless of its specific nature. This is not an appropriate application of the provision. There is no evidence to suggest that any substantive consideration was given to the actual information concerned, to determine if article 8(a)(i) of the AIE Regulations applies to the “location of issue” column in Records 1, 2 and 3.
21. Having reviewed the remaining redacted information in Record 1, (namely in Columns G, J, S, and Z), I am not convinced each of the redacted entries relates to personal information of a natural person as is required under article 8(a)(i). A number of the redacted entries appear to relate to commercial entities such as a limited company, and an unnamed quarry.
22. Having reviewed the remaining withheld information in Record 2, (namely in Columns G, J, S, U, Z) – I am equally not persuaded that each of the redacted entries relates to personal information of a natural person, as is required under article 8(a)(i). From what I can see a considerable number of the redacted entries here relate to commercial entities including a factory and a public house.
23. Finally, having reviewed the remaining redacted information in Record 3, (namely in Columns G, J, S, U, Z) – I can see a considerable number of the redacted entries also do not relate to personal information of a natural person as is required under article 8(a)(i). The redacted information here falls into a wide range of categories and includes the name of a ship, the name of a public house, the name of a nursing home, and the name of a museum – to name but a few. Some of these entries clearly do not relate to a natural person as is necessary to engage article 8(a)(i) of the AIE Regulations.
24. I note that some of the redacted information in the relevant columns at issue in Records 1, 2, and 3 relates to location information of the person reporting the environmental pollution. The appellant has said they do not require details of the person making the report or the person who carried out any alleged criminality: “I understand that in some cases redacted entries refer to natural persons, and (the appellant) do not request these records”. But in some instances the location data of the person reporting, and the location data of the environmental pollution being reported is one and the same. This occurs for example in numerous instances within the records where a report of the dumping of illegal waste on an individual’s land is made by the individual land-owner. This results in some instances where the location of the pollution reported quite clearly relates to a natural person, but no effort to explain this to the appellant was made and the EPA has not addressed this point in any meaningful way. In any event there is no evidence that the EPA has examined the withheld information in enough detail to ascertain whether article 8(a)(i) properly applies.
25. For the reasons outlined above, I do not think the EPA has demonstrated that it has correctly applied article 8(a)(i) to the redacted information at issue in records 1, 2, and 3. In these circumstances, where the EPA has not fully engaged with its obligations under the AIE Regulations and correctly assessed the actual information at issue, I do not believe that it is appropriate for me to direct the release of information at this point. Neither do I think it is appropriate for me to analyse whether the second and third limbs of article 8(a)(i) are met - namely whether the confidentiality of that personal data is provided by law, and that the disclosure of the data at issue would adversely affect that confidentiality. It is for the EPA to make this case once a thorough inspection of the information at issue has been conducted.
26. As I have outlined above, it may be the case that article 8(a)(i) is applicable in respect of certain information relating to some of the information withheld (subject to article 10). But there is no evidence to suggest that any substantive consideration was given to the actual information concerned, to determine if article 8(a)(i) of the AIE Regulations properly applies. I consider that the most appropriate course of action to take is to annul the EPA’s decision in respect of the information withheld in Records 1, 2 and 3.
Natural person - Records 4 and 5
27. Records 4 and 5 relate to data collected from the “See it? Say it” application. Columns D and E of records 4 and 5 have been withheld in their entirety. The EPA is relying on article 8(a)(i) of the AIE Regulations in seeking to refuse access to the information at issue in respect of all of the location coordinates of pollution reports collected in its “See it? Say it!” application.
28. As I have laid out above, article 8(a)(i) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law.
29. Accordingly, one of the first considerations for a public authority, in ascertaining whether article 8(a)(i) of the AIE Regulations is engaged, is to examine the information at issue to ascertain whether it is personal information relating to a natural person.
30. The EPA have made no attempt to demonstrate that the coordinates that are withheld in Columns D and E on spreadsheet 4 and 5 are personal information relating to a natural person. Furthermore, the EPA has withheld all the information in columns D and E, and seems to have applied a blanket approach to applying article 8(a)(i) here. As such I cannot see any evidence that the coordinates redacted were individually examined by the EPA to ensure the each relate to a natural person, as is the first requirement necessary in order to rely on article 8(a)(i).
31. I can envisage the possibility of the latitude and longitude coordinates in columns D and E being related to a natural person in some circumstances, but in instances where a complaint may have been made on the app in relation to an incident such as illegal dumping of waste in a public area, such as the side of a rural road, I cannot see how the information redacted could possibly amount to information relating to a natural person, in which case article 8 (a)(i) cannot apply. I also note that the redacted information in Records 1-3, which relate to data from the National Environmental Complaints Line, contain a considerable amount of reports of alleged activity related to commercial entities. I consider it entirely possible that the withheld information in Records 4 and 5 relate to the location coordinates of commercial entities or organisational bodies which would not relate to a natural person, as is necessary to engage article 8(a)(i) of the AIE Regulations. In any event the EPA does not seem to have considered the redacted information here in enough detail to determine any of these possibilities.
32. I am of the view that the EPA adopted a blanket approach to its refusal of all of the information at issue contained in columns D and E by claiming that article 8(a)(i) applied to all of the information concerned, regardless of its specific nature. This is not an appropriate application of the provision. Article 8(a)(i) may be applicable in respect of certain information relating to some coordinates (subject to article 10), but again there is no evidence to suggest that any substantive consideration was given to the actual information concerned, to determine if article 8(a)(i) of the AIE Regulations properly applies. I do not believe it is appropriate in these circumstances for me to do an analysis of whether the other limbs of article 8(a)(i) apply here – namely whether the confidentiality of that personal data is provided by law, and that the disclosure of the data at issue would adversely affect that confidentiality. It is for the EPA to make this case once a thorough inspection of the information at issue has been conducted.
33. In these circumstances, where the EPA has not fully engaged with its obligations under the AIE Regulations and correctly assessed the actual information at issue, I do not believe that it is appropriate for me to direct the release of information at this point. My office has a significant backlog of appeals, and I consider that it is not the best use of our resources to carry out the task of reviewing significant amounts of information where public authorities have neglected to do so at first instance.
34. I would remind the EPA that it has an obligation to apply article 10(5), that where information can be separated and released it is done so. As it stands, I am not satisfied that the EPA has demonstrated that it has correctly applied article 8(a)(i) for records 4 and 5. I consider that the most appropriate course of action to take is to annul the EPA’s decision in respect of the information withheld.
35. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the internal review decision of the EPA in respect of the information withheld in Columns G, J, S, U and Z in Records 1, 2, 3, and Columns D and E in Records 4 and 5. The EPA should now carry out a new internal review process under article 11 of the AIE Regulations.
36. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
on behalf of the Commissioner for Environmental Information