Decision
Andy Dunne and The Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0018
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0018
Published on
Whether refusal to provide access to environmental information in certain records was justified on the ground that those records were not within the scope of the request made under article 6 of the AIE Regulations
On 9 April 2018 the appellant submitted an AIE request to the Department seeking:
“Copies of the following documents:
1. To include but not limited to all inspection notes, findings, maps, reports, recommendations, audits and drafts of such documents— whether such notes were uploaded to the online system or otherwise.
2. All communications of whatsoever nature and in whatever form, to include but not limited to, notifications, letters, emails, notes, memoranda, reports, electronic communications and any other type of communications.
3. All records of all meetings to include but not limited to records of all discussions, minutes, diary entries of all attendees, lists of all persons present, times and dates of all such meetings and/or discussions.
for the period from 1 March 2017 to the 31 December 2017, where any such records relate in any way whatsoever to my lands at” [and he specified the location of his lands].
The Department gave notice of its decision in a letter dated 10 May 2018. It refused the request “in relation to the Rural Environmental Protection Scheme” (REPS) on the ground of article 8(a)(iv) of the AIE Regulations on the basis that “these records constitute legal advice and are therefore exempt from release in accordance with section 31(1) of the Freedom of Information Act 2014”.
On 29 May 2018 the appellant requested a review of that decision. The Department conducted a review and issued its review decision on 25 June 2018. This decision affirmed the earlier decision for the same reason and the appellant appealed to my Office.
In carrying out my review I had regard to the submissions made by the appellant and the Department. I also 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); the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’); and the relevant jurisprudence of the courts.
Comment on the Department’s decisions
The Department accepted that neither of its decisions expressly addressed article 10 of the AIE Regulations. It said that, notwithstanding this, “the provisions of this article, and all other provisions relevant to the request, were considered”.
The High Court, in its decision on Right to Know CLG and an Taoiseach and anor. [2018] IEHC 371, held that:
“it cannot suffice … that the applicant’s request was refused by reference, inter alia, to article 8(b) of the AIE Regulations, without some indication in the review decision as to why it was considered that the public interest in the confidentiality of Government discussions should prevail over the public interest which disclosure of the information would serve” (with emphasis in underlining added).
It is clear that this applies equally to reliance on article 8(a). Accordingly, I regard the reasons given in the Department’s decisions as insufficient because they failed to show that article 10(3), which requires a weighing of the public interest in every case of refusal on the ground of articles 8 or 9, was complied with.
The appellant specified to my Office that he was appealing the “decision of the REPS Section” of the Department. My investigator sought to clarify the scope of appeal, and put it to the appellant that he appeared to be appealing the Department’s refusal to provide him with access to the environmental information contained in records created during 2017, which deal specifically with lands that the appellant owns in a particular townland, and which were held by the Department’s REPS Section when the Department received the AIE request on 10 April 2018. The appellant confirmed that this was the case, but added that he also sought “earlier associated records”, and added that “there is a complete file initially created in about 2009”.
When asked by my Office for a copy of the records at issue, the Department provided copies of nine emails and one spreadsheet. My investigator noted that only two of those records were dated between 1 March 2017 and 31 December 2017 (i.e. during the period specified in the request). All of the other records were dated in 2018. When my investigator asked about the 2018 records, the Department said that it had provided copies of the 2018 records “as they were in response to the other two emails”. As those records were produced after 31 December 2017, they are clearly outside of the scope of the AIE request and therefore outside the scope of my review.
Of the two records that were dated between 1 March 2017 and 31 December 2017, one was an email dated 25 April 2017 and the other was an email dated 2 May 2017. These emails were the only records that the Department regarded as captured by the request and it had refused to make them available to the appellant because they “constitute legal advice”. When asked by my investigator about his view of these records, the appellant expressed concern that a public authority “could claim legal privilege beyond where it might be fair and reasonable”. He went on to say that he would allow my investigator to arbitrate on whether that was the case in this instance. My investigator confirmed that, while he was satisfied that the contents of the emails meet the requirements for legal privilege, any decision to remove the emails from the scope of the appeal was a matter for the appellant. He advised the appellant in the following terms:
“If you decide to drop those emails from the scope of your appeal, the question then would be: what information remains in the scope of your appeal? The answer to that would depend on the Commissioner’s interpretation of your AIE request. If he were to take the view that your request captured “associated records”, as you have argued, then there would be other records remaining in scope. On the other hand, if he were to take your request as confined to records produced within the period which you specified in your request, there would be no records remaining to be considered, i.e. the Department’s position is that the two emails which it says are legally privileged are the only records captured by your request.”
The appellant replied saying: “I am satisfied to drop the two emails from the scope of the request”. I therefore regarded the two emails (i.e. the email dated 25 April 2017 and the other dated 2 May 2017) as outside the scope of my review.
This review required me to determine if the AIE request captured environmental information in records held by the Department before 1 March 2017.
The Department’s position
The Department’s position is that the request was “very specific”, as it was qualified by the period 1 March 2017 to 31 December 2017. It said that the request, as worded, only captured two records, which the appellant has excluded from scope.
The Department said that its searches for relevant records included searches by both “the Assistant Principal over the REPS Section” and “the Senior Inspector who at the time held the actual REPS file”. It said that both of these officers confirmed that no records falling within the scope of the request (with the exception of the two since excluded from scope) were identified.
By way of explaining why further REPS records created between 1 March and 31 December 2017 were not held, the Department explained that the appellant’s REPS contract had expired in August 2010 and his application for a follow-on REPS contract had not been successful. Accordingly, the appellant was not involved in REPS in 2017.
The appellant’s position
The appellant confirmed to my Office that he had been engaged in litigation with the Department between 2017 and 2018 and that it partly related to REPS.
My investigator asked the appellant if he had intended his request to include a request for environmental information ‘in earlier associated records’, what then did he mean by including in his request the words “for the period from…”? The appellant replied:
“The key word is ‘associated’. If, for example, there is an email trail on a matter stretching back in time prior to the period noted, then, from a context point of view, I would considered it to be relevant to the time window in question. In my view ‘records’ always have a context and without the context information is incomplete”.
I accept that the Department has conducted an adequate search and that it holds no further records dated between 1 March 2017 and 31 December 2017 within the scope of the request, and I note that the appellant has not argued to the contrary.
I agree with the appellant that records always have a context. However, in performing my statutory function, I must have regard to the wording used in AIE requests. I cannot see how the request in this case can be read as asking for anything other than environmental information contained in specific records that came to be held by the Department during the period from 1 March 2017 to 31 December 2017. I accept that the appellant believes that it should capture earlier associated records. However, I do not see that he asked for information from such records. Article 6(1)(d) obliges those making AIE requests to “state, in terms that are as specific as possible, the environmental information that is the subject of the request”. In this case, while the AIE request was, at points 1, 2 and 3, extremely broad, it went on to confine what it asked for to specific lands and to a specific time period, and in so doing it was reasonably specific in its terms. I consider that it is not open to me to regard the request as extending beyond what it asked for.
Having carried out a review under article 12(5) of the AIE Regulations, I find that the AIE request did not ask for environmental information held other than that covering the period from 1 March 2017 to 31 December 2017. I accept that the only records that came within the scope of the request, as made, were two emails that the appellant has excluded from scope. Accordingly, I affirm the Department’s decision to refuse to provide the appellant with access to environmental information on foot of his AIE request of 9 April 2018.
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.
Peter Tyndall, Commissioner for Environmental Information