Decision
Mr X and Wicklow County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-95351-T7P5K4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-95351-T7P5K4
Published on
Whether the AIE Regulations provide grounds for refusal of environmental information requested by the appellant
On 20 May 2020, the appellant, through his solicitor, made the following request to the Council under the AIE Regulations:
(1)All information relating to pollution by fuel products of the soil, ground and water and/or the River Slaney at Baltinglass, Co Wicklow from 1st January 2012 to the present.
(2)All information relating to measures and activities undertaken to address or otherwise affect any leaks of fuel substance at Edward Street, Baltinglass, Co Wicklow from 1st January 2012 to the present.
(3)All information, including reports on the implementation of environmental legislation and economic analysis, relating to pollution by fuel products of the soil, ground water and/or the River Slaney at Baltinglass Co Wicklow from 1st January 2012 to the present.
(4)All information relating to human health and safety inasmuch as it is affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by pollution by fuel products of the soil, ground water and/or the River Slaney at Baltinglass, Co Wicklow from 1st January 2012 to the present.
On 2 July 2020, when he had received no reply from the Council, the appellant wrote again seeking an internal review on the basis of a deemed refusal of his original request.
On 28 July 2020, the Council issued the outcome of the internal review to the appellant. The internal review noted that the original decision to refuse had been affirmed on the basis of articles 9(2)(c) and 9(1)(b) of the AIE Regulations as the information related to “an ongoing enforcement case” such that “the information is not complete” and that “disclosure of the information would adversely affect legal proceedings arising from the enforcement procedures”.
The appellant appealed to my Office on 12 August 2020.
The appellant brought this appeal against the Council’s decision to my Office on the basis that the reasons given by the Council for its reliance on articles 9(1)(b) and 9(2)(c) of the AIE Regulations are “vague, incomplete, lacking in detail” and “not sufficient to warrant refusal”.
In the limited submissions it made to this Office, the Council indicated that the information requested was refused on the grounds that the matter is the subject of an ongoing investigation. It stated that the release of any such information might harm the Council’s efforts in bringing legal proceedings and that it would not be in the public interest to jeopardise enforcement proceedings which sought to ensure that those responsible for any environmental contamination would be required to remedy it. It has also sought to rely on articles 9(2)(d) and 8(a)(iii) of the Regulations although no further details were provided either to the appellant or to this Office as to the basis on which those articles were relied on.
My decision in this case is therefore confined to whether the Council’s refusal of the information requested is justified under the AIE Regulations.
I wish to express my regret that there has been a considerable delay in the resolution of this appeal, which was due to a combination of factors. I consider that many of the delays occasioned could have been avoided had the Council been more responsive to requests made by this Office but I must also accept that some were caused by factors relating to my Office. For this, I apologise. I am committed to improving the efficiency of my Office in order to achieve timely reviews in the future.
As I set out in further detail below, the Council’s conduct in relation to this appeal has been unacceptable and I expect it to take steps to engage more fully with the AIE Regulations.
The appellant’s submissions can broadly be summarised as follows:
(i) The appellant argued that article 9(1)(b) could not be relied upon in circumstances where there was nothing to suggest that the Council had considered the information held by it before reaching the conclusion that article 9(1)(b) applied nor was there anything to suggest that the public interest balancing exercise required by articles 10(3) and 10(4) of the Regulations had been carried out by the Council. The appellant further submitted that he was not aware of any enforcement measures or legal proceedings issued by the Council relating to the alleged pollution since the issuance of a notice under section 12 of the Local Government (Water Pollution) Act 1997 on 30 October 2012. The appellant submitted that if there were any enforcement measures they had long since stalled and could not be relied upon to refuse access on the basis of article 9(1)(b).
(ii) The appellant submitted that since there is no suggestion that the Council considered the information requested as part of its decision to rely on article 9(2)(c) then the reliance on that article is unsustainable. He also noted that the AIE Directive requires the Council to provide details on the entity preparing the relevant materials and the estimated time needed for completion. This obligation is replicated in article 10(6) of the Regulations. The appellant submitted that the failure of the Council to specify the name of the authority preparing the material and the estimated time needed for completion provided further grounds for annulling the Council’s decision.
(iii) The appellant also argued that there was a strong public interest in the disclosure of the information requested. He referred to the clear interest of local residents in having access to information relating to potential contamination of the groundwater and the River Slaney. He also submitted that the Slaney River Valley is listed as a Special Area of Conservation by the National Parks and Wildlife Services and supports populations of several species listed on Annex II of the EU Habitats Directive, including otter and salmon.
(iv) He submitted that there was a strong public interest in disclosure of information relating to pollution of the river which must be considered to outweigh any interest served by refusal of the information under articles 9(1)(b) and/or 9(2)(c) in circumstances where:
a. there is no evidence of any relevant enforcement measures or legal proceedings;
b. even if such measures or proceedings were in being, there is no evidence whatsoever that the disclosure of the information sought would adversely affect such proceedings; and
c. no clear argument has been presented for non-disclosure.
(v) Finally, the appellant argued that neither article 9(1)(b) nor 9(2)(c) could be relied on by the Council in circumstances where the request related to information on emissions into the environment.
As outlined above, following a request by my Office, the Council made one brief submission in September 2020, which was received two weeks after the deadline provided. That submission can be summarised as follows:
(i) The Council noted that the information requested had been refused on the basis that the matter to which it related was the subject of ongoing investigation and that the release of the information might harm the Council’s efforts in bringing legal proceedings.
(ii) The Council further submitted that it would not be in the public interest to jeopardise those enforcement proceedings and that this might ultimately harm the environment.
(iii) On that basis, the Council noted that it had relied on articles 9(2)(c), 9(1)(b), 9(2)(d) and 8(a)(iii) to refuse the information requested. I should point out at this juncture that in fact, the Council had only relied on articles 9(2)(c) and 9(1)(b) in its communications with the appellant.
(iv) The Council also referred to advise from its Law Agent which noted that release of the information requested “would … be detrimental to and would impair and perhaps adversely prejudice [the Council’s] ability to commence and carry through on enforcement or any other legal action against the parties responsible for this hydrocarbon/chlorinated solvent release, the ensuing contamination and the possible damage caused to soil and ground water as a result”. It also considered that such release was not in the public interest “and will not be conducive to ensuring that any legal enforcement action which we bring would not be influenced or perhaps adversely affected by the release of any such information or records”. The submissions did not provide any further detail as to the basis for the Law Agent’s conclusion but did note that the Council had a legal duty to pursue those responsible for any pollution caused in the case to which the appellant’s request related.
(v) Finally, the Council also indicated its intention to instruct counsel on the case and to seek counsel’s opinion as to the release of the information requested.
Due to resourcing issues in my Office, it was a number of months before the case was assigned to an Investigator and it might have been expected that some progress would have been made by the Council in terms of instructing counsel and initiating enforcement action. My Investigator wrote to the Council on 6 May 2021 requesting further information. This included an update as to the status of any enforcement or legal proceedings taken by the Council relating to the information requested by the appellant.
The request for submissions referred in particular to articles 9(1)(b) and 9(2)(c) of the AIE Regulations, as these were the articles relied on by the Council in the internal review decision. The request summarised the arguments which had been made by the appellant with regard to those provisions. The Investigator asked the Council to provide further detail as to the basis on which it considered those articles to apply, having regard to the restrictive test mandated by article 10(4) of the AIE Regulations which requires that grounds for refusal be “interpreted on a restrictive basis having regard to the public interest served by disclosure”. The Investigator also invited the Council to make further submissions as to the basis on which it considered the interest served by refusal of the requested information outweighed the public interest in its disclosure and to provide its views as to whether partial disclosure of information could be made in accordance with article 10(5) of the Regulations. Although the request for submissions did not refer explicitly to articles 9(2)(d) and 8(a)(iii), it did ask the Council to provide any other information it considered to be relevant to my review including any documentary evidence to support its position.
The Council responded on 28 May 2021 seeking an extension of time in which to provide submissions which was agreed. On 16 June 2021, the Council wrote to the Investigator to advise that it had instructed counsel in relation to the commencement of legal proceedings and had also asked counsel to provide advice with regard to the appellant’s request. The Council also advised that it was to meet the EPA the following week to discuss the matter. It concluded its correspondence by stating that it would be in touch shortly with a detailed response from its barrister. The Investigator responded, on 17 June 2021, noting that the appeal dated from August 2020 and that my Office wished to resolve the case as efficiently as possible. She therefore requested that the Council’s barrister be advised that the provision of submissions to this Office was a matter of priority and sought a timeframe for receipt of the Council’s submissions.
No such timeframe had been provided by 30 June 2021 and so my Investigator wrote again to the Council which advised that a response was being prepared by its barrister. As no response had been received by 5 July 2021, the Investigator wrote again to outline that submissions should be received no later than 26 July 2021. However, no such submissions have been received by my Office to date.
On analysing the information provided by the Council relevant to the appellant’s request, my Investigator discovered reference to information concerning a number of third parties. Having clarified the scope of the request with the appellant’s representatives, the Investigator wrote to a number of third parties to provide them with an opportunity to make submissions to my Office. Although some initial correspondence (which contain general enquiries) was received from certain third parties, no submissions have been received by my Office to date.
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 parties. I have also examined the contents of the records 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.
The Council has sought to rely on articles 9(1)(b) and 9(2)(c) as grounds for refusal in the internal review outcome provided to the appellant. It has also sought to rely on articles 8(a)(iii) and 9(2)(d) in submissions to my Office although it has not provided much detail as to the basis on which it seeks to rely on those provisions. The appellant argues that there are insufficient grounds on which to conclude that either article 9(1)(b) or 9(2)(c) applies and has also sought to argue that none of the exceptions referred to by the Council can in fact be relied on in circumstances where the request relates to information on emissions into the environment. Notwithstanding that no submissions have been received by any of the third parties contacted, the issue of whether information relating to third parties should be disclosed to the appellant may also be relevant. To the extent necessary, I have set out my conclusions on each of those matters under the various headings below.
Before proceeding with my analysis, I consider it important to comment briefly on the manner in which the Council has approached its duties under the AIE Regulations. The Council’s dealings both with the appellant and with my Office have been unacceptable. It neglected to provide a response to the appellant in the first instance before providing him with an internal review outcome with minimal detail as to the basis for refusal of his request. The internal review outcome did not refer to a weighing of the public interest served by disclosure against the interest served by refusal (as required by article 10(4) of the AIE Regulations). Nor did it deal with the issue of whether partial disclosure was possible in line with article 10(5) of the AIE Regulations. In addition, the Council did not inform the appellant of the name of the authority preparing the material and the estimated time needed for its completion, as provided for in article 10(6) of the AIE Regulations. I would remind the Council that articles 7(4) and 11(4) of the AIE Regulations require it to provide reasons for refusal both at decision and internal review stage. In this regard, the judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”. The Council should take steps to ensure that further detail is provided to applicants in respect of future refusals of requests for environmental information under the AIE Regulations.
The Council’s dealings with my Office have also been unacceptable and have led to further delays in the resolution of the appeal. It is highly unsatisfactory that the Council would refer to two additional grounds for refusal (i.e. articles 8(a)(iii) and 9(2)(d)) in its initial submission to my Office without providing any detail as to the basis on which it considered those grounds to be invoked or that the public interest in relying on those grounds outweighed any interest in refusal. It is even more unsatisfactory that it neglected to provide such detail having been provided with an additional opportunity to do so by my Investigator in May 2021. Not only that, it also failed to provide my Office with additional detail as to the status of the enforcement action which it considered to justify its refusal of the request under article 9(1)(b). It also failed to identify the information it considered to be in draft or incomplete form and therefore subject to the exception contained in article 9(2)(c) of the Regulations.
As outlined in further detail below, it is not evident to me, having reviewed the information provided, that the Council adequately reviewed the information within the scope of the appellant’s request before refusing to provide it. Instead this was left to the staff of my Office. This is neither appropriate nor acceptable. I note, for example, that the Schedule of Records provided to my Office by the Council, which lists 280 documents as relevant to the appellant’s request, notes that all of those documents were refused on the basis that they are “information in contemplation of legal proceedings”. The Schedule makes no reference to articles 9(2)(c), 9(2)(d) or 8(a)(iii). The Council has also claimed that article 9(1)(b) provides it with grounds to refuse certain documents, including information that is otherwise publicly available, such as Property Registration Maps and planning folios. Not only that, the Council has also sought to rely on grounds for refusal under the AIE Regulations to refuse information which has already been provided to the appellant’s representatives. I note in this regard that a number of emails withheld by the Council, which attach and refer to various reports commissioned as part of its investigation of potential pollution, were provided to an environmental consultant acting on behalf of the appellant. This demonstrates a careless attitude by the Council.
In addition, the Council requested repeated extensions to deadlines set by my Investigator on the basis that it needed to consult its counsel. Having been granted such extensions, it then failed to respond to any of the specific requests for further information contained within that request for submissions or indeed to provide any submissions at all. Had the Council engaged more fully, both with the appellant and with my Office, many (if not all) of the issues encountered in the resolution of this appeal might have been avoided. The Council has failed to comply with its obligations under the AIE Regulations. The conduct of the Council in relation to this appeal is unacceptable and I expect it to take steps to rectify matters.
Article 9(2)(c) of the Regulations provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion or unfinished documents or data. Article 10(4) however 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 while article 10(3) provides that a public authority must consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. As outlined above, the Council has provided limited reasoning for its refusal to provide the appellant with the documents requested.
It is common practice for my Office to request a schedule of the information relevant to the request under appeal. Such a schedule usually lists the relevant records sequentially by number and sets out the date of the record, the title of the record, a brief description of the record, whether access to the record has been granted or refused and, where access has been refused, in whole or in part, the relevant provision(s) of the AIE Regulations on which the refusal was based. Such a request was made to the Council and, as outlined above, a Schedule of Records was provided listing some 280 documents. No reference was made to article 9(2)(c) in that schedule. Instead, the Council listed “information in contemplation of legal proceeding” as the grounds for refusal of all records. It appears from the limited submissions provided by the Council that it also seeks to rely on article 9(2)(c) on the basis that the investigation of the alleged pollution referred to in the appellant’s request is ongoing.
Article 9(2)(c) of the AIE Regulations applies to “material in the course of completion” or to “unfinished documents or data”. The AIE Regulations transpose the AIE Directive into national law. The AIE Directive, in turn, aims to ensure that EU law is consistent with the provisions of the Aarhus Convention, as noted in Recital 5 of the Directive. The Aarhus Guide sets out that “… the mere status of something as a draft alone does not automatically bring it under the exception. The words ‘in the course of completion’ suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the course of completion they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. ‘In the course of completion’ suggests that the document will have more work done on it within some reasonable timeframe”.
It is therefore my view that each individual record forming the information requested must be examined when assessing whether article 9(2)(c) applies, rather than the decision-making process to which the information relates. The Aarhus Guide supports my view that the expression “in the course of completion” relates to the process of preparation of the information or the document. It does not relate to any decision-making process for the purpose of which the information or document at issue was prepared. I believe that this aligns with the wording of article 9(2)(c) which refers in no uncertain terms to “materials in the course of completion” and not to any decision making process.
I am mindful that the exceptions provided for in Article 4(1)(d) of the AIE Directive and article 9(2)(c) of the Regulations are wider than that contained in the Aarhus Convention. Both the Directive and the Regulations refer to “material in the course of completion or unfinished documents or data” whereas Article 4(3)(c) of the Convention refers only to “material in the course of completion”. I am also conscious of the decisions of the Court of Justice of the European Union to the effect that while the Guide can be used as an aid to interpretation, it is not binding ( C-182/10 Solvay and Others v Région Wallonne, paragraph 27). However, it is my view that the provisions of Regulations and the Directive are in keeping with the provisions of the Aarhus Guide which suggest that it is the status of the documents themselves that is relevant since those provisions again refer to unfinished documents or data. Article 9(2)(c) therefore can only be said to apply where the information requested consists of materials in the course of completion, unfinished documents or unfinished data and does not, as the Council suggests, apply simply because some of the information requested forms part of an ongoing investigation. The question is whether the information requested “concerns material in the course of completion or unfinished documents or data” and not whether the decision-making process, in respect of which the information was generated, is incomplete.
Having reviewed the information in question, there appear to be fourteen documents which include the word “draft” in the title or are otherwise marked as “draft” and might be considered to concern material in the course of completion or unfinished documents or data. I note that one document contained in the information provided to my Office (Commentary on JS Drilling reports and site inspection referring depth to bedrock, preferential flow paths and air quality dated 26/08/2014) is marked draft but is the subject of a follow on clarification from the sender that it is in fact the final version.
I have reviewed the documents in question. I do not consider them to be unfinished documents or documents that are currently in the course of completion, nor were they in the course of completion at the time of the appellant’s request. I am therefore not persuaded that article 9(2)(c) of the AIE Regulations provides grounds for refusal for any of those documents. The fact that the relevant documents were not identified separately by the Council, which instead relied on a blanket application of article 9(2)(c) to the entirety of the information held by it, suggests that the information requested was not examined in detail by the Council before it sought to rely on article 9(2)(c). In those circumstances, it is not clear to me how the Council could have weighed all relevant factors as required in order to determine whether the public interest in disclosure of the relevant information outweighed any interest served by its refusal. It is therefore not clear to me that the Council complied with its obligations under articles 10(3) and 10(4) of the Regulations.
The next question to be considered is whether article 9(1)(b) provides the Council with grounds to refuse any or all of the information requested. Article 9(1)(b) permits a public authority to refuse to make available environmental information where disclosure of that information would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries).
It is clear from the wording of article 9(1)(b) that there must be some adverse effect on the course of justice in order for the exception to apply. While the AIE Regulations do not explicitly provide that the burden of proof rests with the public authority in relation to justifying a refusal to make information available, I consider that the scheme of the AIE Regulations and the Directive makes it clear that there is a presumption in favour of release of environmental information.
This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. Although that decision relates to the exception contained in article 9(2)(d) of the Regulations, it contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment:
“As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, 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.” (emphasis added)
The Council made one submission to my Office in which it argued that an ongoing investigation into potential pollution was taking place and that release of the information requested might harm its efforts in bringing legal proceedings and hamper its efforts to ensure that any individual or entity responsible for any such pollution would be required to remedy it. The Council’s submissions also referred to its legal duty to pursue those responsible for any pollution caused. However, the Council does not appear to have initiated any enforcement proceedings. Although the Council’s initial submissions of September 2020 indicated its intention to engage counsel, little progress appears to have been made on the matter by May 2021 with communications to the Investigator at that time indicating that counsel had in fact only recently been instructed. The Council also requested extensions of time on the basis that it wished to seek counsel’s opinion before providing submissions. However, despite repeated requests from my Office, no information was provided as to the current status of the Council’s investigation or as to any enforcement proceedings.
The submissions made by the Council to this Office do not, in my view, establish a reasonably foreseeable risk that release of the information requested will adversely affect the course of justice. The Council has simply made general statements as to what might happen were the information to be released. I would like to make it clear that it is highly unsatisfactory that the Council would seek in the first instance to rely on article 9(1)(b) as grounds for refusal without being in a position to provide my Office with details as to the basis on which it considered that the course of justice would be adversely affected. Article 10(3) of the Regulations clearly provides that the request must be considered on an individual basis with the public interest served by disclosure weighed against the interest served by refusal. The Council should therefore have been in a position to provide detailed reasoning to the appellant at the date of refusal.
However, as noted by the High Court in M50 Skip Hire Recycling Limited v Commissioner for Environmental Information [2020] IEHC 430, article 12 confers me with jurisdiction to conduct a de novo consideration when dealing with an appeal and therefore my considerations are based on the circumstances of the case at the time that I carry out my review. With that in mind, the Investigator facilitated the Council’s request for extensions to the timeline for submissions. It is therefore even more unsatisfactory that the Council has at no point provided submissions or indeed any detail as to the current status of any enforcement action or legal proceedings.
Having reviewed the information in this case, it is not clear to me that the Council addressed its mind to the issue of whether grounds for refusal could be said to apply to each piece of information in accordance with its obligations under article 10(5). The Council made a blanket assertion that release of all information requested by the appellant would have an adverse impact on the course of justice. A review of the information provided demonstrates that this is not the case with regard to all of the information provided to my Office. It is possible to distinguish a first tranche of information to which the exception provided for at article 9(1)(b) clearly would not apply on the basis that it is extremely difficult to envisage any circumstance in which disclosure of such information to the appellant would adversely affect the course of justice. For example, the Council seeks to rely on article 9(1)(b) to refuse information which was in fact provided to it by the appellant as well as notices which issued to the alleged polluters under section 12 of the Local Government (Water Pollution) Act 1997, eight years before the appellant’s request. It also seeks to rely on article 9(1)(b) with respect to information which is identified in other correspondence as having been disclosed to the occupants of the property from which the pollution is alleged to have emanated, as well as to their representatives. The Council also relies on Article 9(1)(b) in order to withhold a planning file and maps of certain properties which have been registered with the Property Registration Authority. Finally, and most bizarrely, the Council is also seeking to rely on article 9(1)(b) as grounds to refuse information which has in fact already been provided to the appellant’s representative for review and comment.
There is a second category of information to which article 9(1)(b) might be said to apply in that it is possible to envisage hypothetical scenarios in which disclosure of that information might adversely affect an investigation and/or enforcement proceedings. These include emails and notes of meetings between Council staff as well as meetings between Council staff, consultants engaged by the Council and representatives of complainants, and the occupants of the property, which was the subject of investigation, as well as reports commissioned by the Council to investigate potential contamination and reports provided to the Council in this regard. However, the Council has not provided detail as to how release of any such information could be reasonably expected to undermine any investigation or enforcement proceedings. I also note that many of the reports and notes of meetings are already in the possession of both the appellant and the occupants of the property that is the subject of the Council’s investigations.
It is my view therefore that there is nothing before me which would warrant a conclusion that the risks of any adverse effects on the course of justice are “reasonably foreseeable” as opposed to “purely hypothetical”, particularly in circumstances where the Council provided no detail as to the status of its investigation and/or any enforcement action. I also note from a review of the information provided by the Council to my Office that a notice under section 12 of the Local Government (Water Pollution) Act 1977 was initially served on the occupant of the property from which the alleged pollution was considered to have emanated in October 2012 and that complaints have been made by the appellant to the EPA at various intervals since February 2013. While I accept that investigations of any nature can take time and that investigations of environmental matters can often prove complex, it is now over nine years since that initial notice was served and it is unclear whether any investigation or enforcement action is currently being undertaken by the Council. I do not consider that the grounds for refusal in article 9(1)(b) can be said to apply to the second category of documents either.
There is a third category of information included in the records provided to my Office which consists of legal advice to the Council from its Law Agent to which legal privilege might be expected to apply in the normal course. The documents falling into this category are listed in Appendix 1 of this decision. The Council has not specifically asserted such privilege and instead has made a blanket statement that the entirety of the information is subject to the exception contained in article 9(1)(b) of the Regulations. It is not acceptable that the Council does not appear to have fully engaged with its obligations under the AIE Regulations to consider each request on an individual basis in order to determine, in the first instance, whether grounds for refusal may apply and, if so, whether the public interest in disclosure outweighs the interest in refusal. As the Council did not carry out this exercise at first instance, it falls to my Office to do so. This is completely unacceptable and has led to unsatisfactory delays for the appellant, which have been exacerbated by the Council’s continued failure to engage appropriately with my Office.
Legal advice privilege applies to confidential communications between a professionally qualified lawyer and a client for the purposes of obtaining or providing legal advice. The case law on legal advice privilege generally recognises that failure to provide for such privilege may adversely affect the administration of justice such that “where it is established that a communication was made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice, whether at the initiation of the client or the lawyer, that communication made on such an occasion should in general be privileged or exempt from disclosure, except with the consent of the client” (Smurfit Paribas Bank Limited v AAB Export Finance Limited [1990] 1 IR 469 at para 31). The rationale for such privilege is to “ensure that a client might fully instruct his lawyer freely and openly safe in the knowledge that what he says to his lawyer in confidence would never be revealed without consent” (Shell E&P Ireland Ltd v McGrath (No. 2) [2007] 2 IR 574). It is accepted that there is a strong public interest in the maintenance and protection of legal privilege. The courts are reluctant to infer any implied waiver of privilege and the general rule is that privilege will not be lightly overturned, even in the event of disclosure to third parties, in the absence of an intention to abandon the privilege (see Fyffes v DCC [2005] 1 IR 59).
I note that the case law also makes it clear that the onus is on the party asserting privilege to justify that claim. As outlined above, the Council has not explicitly referred to legal advice privilege. However, it has relied on article 9(1)(b) in respect of the entirety of the information held by it which is relevant to the appellant’s request. It is also clear to me from a review of the documents in question that they satisfy the four conditions necessary for legal advice privilege to apply in that they consist of communications between the Council and its Law Agent, made in confidence, to or by a lawyer during the course of a professional legal relationship and for the purpose of giving or receiving legal advice (see Lyons v O’Mahoney [2017] IEHC 649). It is also clear from the case law that the adverse effect of the disclosure of information to which legal advice privilege attaches is the undermining of the general assurance that correspondence with one’s legal advisor will remain confidential which in turn adversely impacts the administration of justice. I am therefore satisfied that the disclosure of the information identified in Appendix 1 would adversely impact the course of justice. However, that is not the end of the matter as I must also consider whether the public interest weighs in favour of withholding the relevant information having regard to the provisions of article 10(3) and 10(4) of the Regulations.
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”. In my view, this recognises a strong public interest in openness and transparency in relation to environmental decision-making. There is undoubtedly a public interest in transparency as to how public authorities carry out their functions with regard to environmental factors. In this case, the functions of the Council include taking steps to investigate alleged pollution and to ensure that activities giving rise to such pollution cease and that appropriate remedial and enforcement action is taken. There is a strong public interest in transparency with regard to how the Council carries out such functions since failure to exercise those functions appropriately might give rise to significant adverse environmental impact.
That said, the AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. One such case is where disclosure may adversely impact the course of justice. I must give due regard in this case to the fact that the Council has made little effort to establish its entitlement to refuse information in accordance with the provisions of the AIE Regulations. It does not appear to have adequately considered the information in question, or the applicability of each exception it has relied on to each record. Neither does it appear to have adequately considered the question of partial disclosure in accordance with article 10(5) or the requirements, set out in articles 10(3) and 10(4), to consider the individual circumstances of the request, to interpret grounds for refusal restrictively and to weigh the public interest served by disclosure against the interest served by refusal. My Office therefore found it necessary to carry out this task. I will not have the inquisitorial remit of my Office exploited, such that public authorities fail to carry out that work themselves. It is inappropriate and contrary to the letter and the spirit of the AIE regime for public authorities to take a “kitchen sink” approach to refusal, invoking each ground for refusal on a blanket basis in the hope that my Office will apply those exceptions as appropriate, allowing for the refusal of relevant information. That is clearly neither appropriate nor in the public interest. In most cases, I consider that this factor could tip the balance in favour of disclosure. However, legal privilege is a significant feature of our legal system and the Courts have noted on numerous occasions the strong public interest which exists in protecting it. I do not consider it would be in the public interest that a public authority would lose the benefit of legal advice privilege simply because certain individuals in that authority did not adequately address the importance of its protection. I consider that the public interest weighs in favour of allowing the Council to maintain legal advice privilege over the documents I have identified at Appendix 1 of this decision.
The Council did not refer to article 9(2)(d) in the reasoning it provided to the appellant and mentioned it only briefly in the submissions provided to my Office. Having reviewed the information at issue, I note that some of it might be said to consist of internal communications. However, as noted above, the CJEU in Land Baden Württemberg v DR made it clear that there must be a reasonably foreseeable risk that the interest protected by the exception relied upon might be undermined in order for that exception to apply. It is not clear to me what interest the Council is seeking to protect by relying on this exception, nor am I satisfied that disclosure of such information would have any adverse impact.
I do not consider article 9(2)(d) to apply in the circumstances of this case.
Article 8(a)(iii) provides grounds for refusal where disclosure of the information would adversely affect the protection of the environment to which the information relates. As with article 9(2)(d), the Council provided no information as to the basis on which it considered article 8(a)(iii) to apply other than a general statement that release of the documents might jeopardise enforcement proceedings which might ultimately harm the environment. As I have outlined above, there is no evidence to suggest that any enforcement proceedings have in fact been initiated although the investigation commenced in 2012. Neither is there any information before me to suggest that there would be an adverse impact on the protection of the environment to which the information relates.
In fact, it appears to me that given the Council’s own view that it has an obligation as an enforcement authority to pursue those responsible for any pollution, in addition to the apparent lack of progress in the investigation, there would be an adverse impact on the protection of the environment in refusing to make available information under the AIE Regulations. This is especially the case here where the information will allow the public to form a view as to whether the Council is taking satisfactory steps to comply with its obligation to protect the environment.
I do not consider article 8(a)(iii) of the AIE Regulations to apply.
There are a number of references to third parties in the information provided to my Office.
Some of that information I consider to be outside the scope of the appellant’s request. In the first instance, the Tender File provided by the Council contains information on the identity of tenderers for a project to investigate the alleged pollution as well as information on pricing and the scoring of the respective tenders. The appellant confirmed, in correspondence to my Investigator, that he did not need to be provided with information on the identity of specific tenderers, the pricing of any such tenders or the scoring of such tenders. All of this information can therefore be considered outside the scope of his request. I have identified such information in Appendix 2 of this decision, having reviewed the information and bearing in mind the appellant’s submission that he does wish to be provided with access to information relating to the scope of the works contemplated under tenders and the reason for and nature of the proposed works.
There is also information on the file concerning third parties which can be broadly categorised as consisting of references to (i) the property the subject of the investigation (including information concerning its owners and their representatives); and (ii) other properties surrounding the alleged source of pollution to which the appellant’s request refers (including in some cases the names and contact details of those property owners). The appellant has confirmed that his request includes information contained in the Council’s records relating to properties in the affected area. It is therefore necessary for me to consider whether such information should be disclosed to the appellant pursuant to his request. Since it is not my function to disclose information, I am limited to a certain degree in terms of the detail I provide in my decision in relation to the records. However, I should be clear that there are numerous references to many third parties in the information provided to my Office by the Council. Some of that information is outside of scope as outlined above and below. Some of it contains references to businesses and individuals acting in a professional capacity and I do not consider there to be any potentially adverse impact for those individuals or business which would justify refusal. Where such potential adverse impact was considered to exist, my Investigator wrote to the relevant third party to advise them of the appeal and provide them with an opportunity to make submissions. Although preliminary correspondence was received from some third parties, no submissions were received. I am not aware of any adverse impact on third parties being claimed to exist either by the Council or by the third parties themselves. No contact appears to have been made by the Council with any third parties and no reliance was placed on any of the exceptions relating to third party information. The third parties with whom contact was made by my Office were as follows:
(i) The owners/occupiers of the property which has been investigated as the potential source of the alleged pollution (the “Owners”),
(ii) The insurance company representing the Owners (the “Insurance Company”),
(iii) The previous owner of a property in the area which was also used as a filling station (the “Previous Owner”)
(iv) The owner of a neighbouring property who complained to the Council about potential pollution of their water supply and with whom the Council corresponded in relation to an inspection of their property as part of the investigation. The owner of this property also appears to have been engaging with the Council on a separate planning matter and there are references in the information provided by the Council to my Office to that separate matter (“Neighbour A”),
(v) The owner of a neighbouring property who complained to the Council about potential pollution of their water supply and with whom the Council corresponded in relation to an inspection of their property as part of the investigation (“Neighbour B”),
(vi) Named owners of properties potentially impacted by the alleged pollution who do not appear to have made contact with the Council but who were written to by the Council seeking access to their property as part of the investigation (“Neighbours C and D”),
(vii) Named owners of properties in the area of the alleged pollution who are listed as owners on a PRA map of the area but with whom the Council do not appear to have made contact (“Neighbours E, F, G and H”).
(viii) The Environmental Protection Agency, which had liaised with the Council following receipt of a complaint in relation to the action taken by the Council to investigate and deal with the alleged pollution.
Before I consider whether information relating to third parties should be disclosed to the appellant in accordance with his request, I should point out that there is some information on the file relating to third parties (in addition to the tender documents referred to above) which I do not consider to come within the scope of the appellants’ request. This consists of information relating to Neighbour A’s interactions with the Council on a separate planning matter. Although this information does refer to the alleged pollution and the existence of an investigation in relation to same, it is not, in my view, information relating to pollution by fuel products at Baltinglass, Co Wicklow, to measures and activities taken by the Council to address such pollution, to reports on the implementation of environmental legislation and economic analysis, relating to pollution, or, to the state of human health and safety inasmuch as it may be affected by any such pollution.
I have given detailed consideration to the question of whether the names of owner and occupiers of properties in the surrounding area constitute “environmental information” within the meaning of article 3(1) of the Regulations or whether those names are too remote to satisfy the test referred to by the High Court in Redmond v Commissioner for Environmental Information [2020] IECA 83 (see paragraph 43). However, many of the references to properties made in the records identify the relevant property by the name of its occupant/owner only such that it would be difficult to identify the property in question were that name redacted from the information. I am therefore satisfied that the names of owners and occupiers of properties referred to on the Council’s files are information “on”:
(a) pollution by fuel products of the soil, ground and water and/or the River Slaney at Baltinglass, Co Wicklow from 1st January 2012 to the present;
(b) measures and activities undertaken to address or otherwise affect any leaks of fuel substance at Edward Street, Baltinglass, Co Wicklow from 1st January 2012 to the present; and
(c) human health and safety inasmuch as it is affected by the state of the elements of the environment or, through those elements, by pollution by fuel products of the soil, ground water at Baltinglass, Co Wicklow from 1st January 2012 to the present.
On the other hand, I do not consider the contact details of any third party (i.e. their phone number and/or email address) to come within the definition of “environmental information” set out at article 3(1) of the Directive as I do not consider it to be sufficiently connected with the alleged pollution and/or the Council’s actions in respect of that alleged pollution to constitute information “on” any of the elements contained in paragraphs (a) to (f) of article 3(1). Neither do I consider the home addresses of the Owners to be sufficiently connected with the above matters since the investigation into the alleged pollution relates to their business premises and not their residence. Therefore, any contact details of individuals and the home address of the Owners may be removed from any information disclosed.
There are, broadly speaking, two principle grounds for refusal in the Regulations which relate to third party information. These are:
(i) Article 8(a)(i) which allows for the refusal of environmental information where disclosure 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.
(ii) Article 8(a)(ii) which allows for the refusal of environmental information where disclosure would adversely impact the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information.
Article 8(a)(i) allows for refusal of information where the disclosure of such information would adversely impact the confidentiality of personal information where that confidentiality is protected by law. As outlined above, neither the Council nor any of the third parties in question have raised any legal protections in respect of confidentiality, which might apply in this case.
Article 4 of the Directive, which refers to exceptions, notes that when applying article 4(2)(f) (i.e. the equivalent provision to article 8(a)(i) of the AIE Regulations), Member States “shall ensure that the requirements of Directive 95/46/EC of the European Parliament and the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are complied with”. Directive 95/46/EC has since been replaced by Regulation 2016/679 (the General Data Protection Regulation). Neither the Directive nor the GDPR are referred to in the Regulations. The AIE Regulations are however referred to in the Data Protection Acts 1998 to 2018, section 44 of which provides that “for the purposes of Article 86 [of the GDPR], personal data contained in environmental information may be disclosed where the information is made available under and in accordance with the Access to Information on the Environment Regulations pursuant to a request within the meaning of those Regulations”.
Article 86 of the GDPR in turn provides that “personal data in official documents held by a public authority or a public body … may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to this Regulation”. It is therefore clear that while the GDPR and the Data Protection Acts require that the entitlements of requesters under the AIE Directive and the Regulations be balanced with the rights of natural persons to have their personal data protected and processed in accordance with data protection law, they do not provide for a blanket prohibition on the disclosure of personal data as part of an AIE request. It also appears to me that the AIE Regulations seek to reconcile public access to official documents with the right to the protection of personal data in the manner envisaged by the GDPR. They do so by providing that refusal is only permissible in circumstances where disclosure would adversely affect the confidentiality of personal information.
As noted by the CJEU in Land Baden Württemberg v DR, the risk of undermining the protected interest by disclosure of the information must be reasonably foreseeable and not purely hypothetical (see paragraph 69).
I do not consider there to be any adverse effect which would warrant the application of article 8(a)(i). I imagine that the owner of a property may not wish to make it publicly known that there is a potential contamination of their water supply. However, I note from the file that the Council provided copies of the section 12 notice to third parties on request. The issue of potential contamination of domestic water supplies in the Baltinglass area is therefore, to a certain extent, a matter of public knowledge such that providing details of the properties considered as part of the investigation could hardly be said to have a more adverse impact on the owners of those properties. My conclusions may have been different had I been advised of other potentially adverse effects in submissions from either the Council or from third parties but, as outlined above, no such submissions have been received.
I will also consider the applicability of article 8(a)(ii) as there is some information on the file which could be described as having been voluntarily supplied to the Council. I should note firstly, with regard to the Owners and the Insurance Company, that much of the information provided to the Council by those parties was in response to the section 12 notice issued by the Council and I am therefore not convinced that article 8(a)(ii) could be said to apply at all. However, even if it could be said that article 8(a)(ii) applied, there is no evidence that an adverse effect would arise from the release of the information.
The correspondence from Neighbour B consisting of complaints about potential pollution of their water supply was also voluntarily provided, as was a signed consent form from Neighbour D, allowing for Council access to their property. Again, however, for the reasons outlined in paragraph 60 above, I do not consider there to be any adverse effect which would warrant the application of article 8(a)(ii).
Finally, there is a significant amount of information which consists of correspondence between the Council and the EPA relating to the progress of the Council’s investigation. My Investigator wrote to the EPA to provide it with an opportunity to make submissions on the disclosure of such information. The EPA confirmed it had no objection to the release of any of the EPA produced records but requested that the personal information of the complainants be redacted from those records. The complainant and his representatives have however confirmed that they do not seek redaction of their details from the documents in question. I therefore do not consider it necessary to redact the personal information of the complainants nor do I consider that AIE Regulations provide me with any basis on which to do so.
The appellant provided submissions to my Office in which he argued in the first instance that neither article 9(1)(b) nor 9(2)(c) could be relied on by the Council in circumstances where the request related to information on emissions into the environment. However, I note that article 10(1) of the Regulations provides 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”. This replicates a similar provision in article 4 of the AIE Directive, which provides that “Member States may not, by virtue of paragraph 2(a), (d), (f), (g) and (h), provide for a request to be refused where the request relates to information on emissions into the environment”. The exceptions contained in paragraph 2(a), (d), (f), (g) and (h) of article 4 of the Directive correspond to the grounds for refusal contained in articles 8 and 9(1)(c) of the Directive. Article 10(1) of the Regulations is therefore not of relevance when considering whether the Council is entitled to refuse access to the environmental information requested by the appellant under article 9(1)(b) or 9(2)(c).
I do note however that the Council did seek to rely on article 8(a)(iii) as a basis for refusal and that I have considered the applicability of articles 8(a)(i) and 8(a)(ii) with regard to the third party information in the relevant information. There is very little guidance on the “emissions exception” provided for at article 10(1) and how it interacts with the exceptions provided for in articles 8 and 9(1)(c), particularly with regard to the protection of personal data. However, given that I do not consider any of those exceptions to apply in the first instance, it is not necessary for me to consider the interaction between the article 10(1) and the protections afforded by articles 8(a)(i) to 8(a)(iii).
Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision and direct release of the environmental information held by the Council within the scope of the appellant’s request with the exception of the legal advice which I consider to be subject to the exception contained at article 9(1)(b) of the Regulations. I should emphasise that this direction to release does not include information I have identified as outside the scope of the appellant’s request.
For the avoidance of doubt, the information contained in the records provided to my Office by the Council which is not subject to my direction to release, is listed at Appendices 1 and 2 of this decision. As also outlined above, the contact details of third parties (i.e. phone numbers and email addresses) may be redacted from the information supplied as may the home address of the Owners.
Given the unacceptable manner in which the Council has conducted itself in response to this request for environmental information, I propose to bring this decision to the attention of the Council’s Audit Committee and the National Oversight and Audit Commission (NOAC) for any action deemed necessary. NOAC is the national independent oversight body for the local government sector in Ireland. Its functions include the scrutiny of performance generally of local authorities.
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