Decision
DAA Public Limited Company and Fingal County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145522-P4V6M2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145522-P4V6M2
Published on
29 May 2024
1. This review arises from an appeal made by a third party appellant under article 12(3)(b) of the AIE Regulations. Article 12(3) of the AIE Regulations states:
“Where—
* a decision of a public authority has been affirmed, in whole or in part, under article 11, or
* a person other than the applicant, including a third party, would be incriminated by the
disclosure of the environmental information concerned, the applicant, the person other than the applicant or third party may appeal to the Commissioner against the decision of the public authority concerned.”
2. I accept that article 12(3)(b) applies where a third party believes that their interests would be affected by the disclosure concerned and therefore I have made the decision to accept this appeal.
3. On 1 November 2023, the Council received a request for access to “all documents, reports, emails, presentations, maps, planning material involving PFAS contamination and material at Dublin Airport… [to] include any test results of any testing for PFAS in the waterways at Dublin Airport and any testing outside of the airport grounds… The start date on this request is Jan 1st, 2022”.
4. By way of background, PFAS is an abbreviation for per- and poly-fluoroalkylated substances which are a large class of synthetic chemicals. Further information on PFAS (and PFOA) substances can be found on the Environmental Protection Agency (EPA) public website: https://www.epa.ie/our-services/monitoring--assessment/waste/chemicals/pfas/
5. On 27 November 2023, the Council consulted DAA under article 7(11) of the AIE Regulations, which provides that where a request is made for information which has been provided to a public authority on a voluntary basis by a third party and, in the opinion of the public authority, release of the information may adversely affect the third party, the public authority shall take all reasonable efforts to contact the third party concerned to seek consent or otherwise to release the information, pursuant to article 8(a)(ii) and article 10. The Council outlined its view that three (3) records included in the request may be considered as relevant information provided by DAA, without legal obligation within the meaning of article 8(a)(ii) of the AIE Regulations. The Council noted that it proposed to release all information in full and stated that it had considered any potential adverse effect of release. It also stated that it had weighed the public interest in disclosure against the interest served by refusal and was of the preliminary view that the public interest would be better served by disclosure.
6. On 5 December 2023, the Council advised the original requester that it had consulted with a third party under article 7(11) of the AIE Regulations.
7. On 15 December 2023, DAA made submissions to the Council. It stated that it was in agreement to grant release of Record 1, however explicitly stated its objection to disclosure by the Council of Records 2 and 3 on the basis of article 9(1)(b) of the AIE Regulations, in circumstances where the disclosure of same would adversely affect the course of justice. It submitted that “In recent months, [DAA] has issued legal proceedings in the High Court of Ireland against a number of parties. While the subject matter of those legal proceedings is confidential, we can confirm that Records 2 and 3 are directly relevant to the proceedings. As a result, [DAA] is extremely concerned that the disclosure of those Records to third parties could seriously prejudice [DAA]’s position in, and impair the progress of, the proceedings which are at a very early stage. In this regard, it is [DAA]’s strong view that the public interest that might be served by disclosing the Records is far outweighed by the very real risk that disclosure will adversely affect the course of justice.” It went on to note that in the event that the Council decides to disclose the documents, “[DAA] reserves the right to appeal that decision… and also reserves the right to offer alternative redacted versions of Records 2 and 3 should that become necessary”.
8. On 22 December 2023, the Council informed DAA that, having considered its submissions, it was of the view that the public interest would, in this case, be better served by granting rather than by refusing access and that the Council’s decision was that the information should be released.
9. DAA submitted an appeal to this Office on 18 January 2024 under article 12(3)(b) of the AIE Regulations, contending that the information at issue should be refused under article 9(1)(b) of the AIE Regulations. During the course of the review, the investigator assigned to this case invited DAA to make submissions in support of its position that the information should be refused. The Council was also invited to make submissions in support of its decision, if it wished to do so (it did not). The original requestor was also notified of the acceptance by this Office of an appeal in relation to his request to the Council under the AIE Regulations.
10. I have now completed a review of this appeal under article 12(5) of the AIE Regulations. In so doing, I have had regard to all submissions made by DAA and I have also reviewed the records at issue. In addition, I have had regard to:
11. My review is concerned solely with whether the Council is justified in its decision to grant access to two (2) records concerning DAA (Records 2 and 3).
12. I consider that the scheme of the Regulations, and of Directive 2003/4/EC upon which the Regulations are based, make it clear that there is a presumption in favour of release of environmental information, and this was made clear to DAA at the outset of the appeal. The implication of this is that in a third party appeal, the onus is on the third party appellant to justify why the relevant information should not be made available under the Regulations.
13. On 15 March 2024, the Council provided this Office with a copy of Records 2 and 3 as identified by it as relevant to the request.
14. Record 2 is dated 1 November 2020 and is described as “Materials management report sent to FCC by the EPA”. The report itself is a 54-page document titled “Dublin Airport Runway Development – Material Management Design Report for the Management for PFOS/PFOA Impacted Soils”. An abstract explains that “Fehily Timoney and Company (FT) was retained by RBFCC [Roadbridge FCC Joint Venture] to undertake the design of the proposed material management plan at the Dublin Airport, North Runway Development. The design and management plan were required to outline the material management plan to reduce the potential residual risk to environmental receptors from the re-use of PFOS and PFOA impacted soils within the development site.”
15. Record 3 is dated 1 November 2021 and is described as “A groundwater and surface water risk assessment report sent to FCC”. The report here is a 1,117-page document titled “Dublin Airport Runway Development – Groundwater and Surface Water Risk Assessment and Remediation Options Appraisal”. An abstract explains that “Fehily Timoney and Company (FT) was retained by the Roadbridge FCC JV to undertake a Risk Assessment on reported concentrations of PFAS contaminants in groundwater at the Dublin Airport, North Runway Development. This report presents the findings of the assessment undertaken to consider the risks posed to human health and controlled waters from the concentrations of PFAS contamination associated with the former use of the APEC 5 site as a Fire Training Ground. The findings of this assessment have been used to outline recommended monitoring following completion of the North Runway related construction works to monitor the residual risks posed to sensitive receptors at and adjacent to the site.”
16. This Office noted that the requestor had specified the start date of the AIE request as 1 January 2022 and therefore the Council was asked to clarify the basis on which the above records, which clearly pre-date this, were considered to fall within scope of the request. This issue was also raised by DAA in the course of this appeal.
17. The Council clarified that the records in question “were only forwarded to the Council’s Environment Department by the EPA in December 2022… and the Council did not feel it would be acting in the spirit of the AIE Regulations to separate the email received from the EPA from its earlier-dated attachment.” I consider this to be an appropriate interpretation of the scope of the request, having regard to the scheme of the AIE Regulations and Directive and the presumption in favour of release of environmental information. The request was made to the Council, and therefore it is reasonable to take the date the information was received by the Council as the relevant date. Even if I was to take a more restrictive approach and find that these documents were outside the scope of the request, the requestor would simply need to make a new request for the information at issue, and therefore it is more efficient and appropriate for me to deal with the substantive issue of whether the information sought is exempt from release under the AIE Regulations at this stage.
18. DAA contends that the information contained in Records 2 and 3, as described above, may be refused under article 9(1)(b) of the AIE Regulations. This provision states:
“9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect—….
(b) the course of justice (including criminal inquiries and disciplinary inquiries).”
19. Article 9(1)(b) of the AIE Regulations transposes Article 4(2)(c) of the AIE Directive, which in turn is based on Article 4(4)(c) of the Aarhus Convention. Article 4(2)(c) of the AIE Directive provides that Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature.
20. The Minister’s Guidance, in considering “The Course of Justice” states:
“Environmental information relating to anything which is the subject matter of any legal proceedings, or of any formal inquiry (whether past or present), or any preliminary investigation, may be refused. Examples would include information in connection with intended prosecution of offences by the Director of Public Prosecutions or by local or other public authorities; information affecting enforcement proceedings; material arising from public or disciplinary inquiries; and information relating to preliminary or other proceedings instituted by the European Commission” (paragraph 12.3).
21. Article 9(1)(b) of the AIE Regulations must be read alongside article 10, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) clearly provides that the request must be considered on an individual basis with the public interest served by disclosure weighed against the public interest served by refusal. Also, article 10(5) provides 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.
22. The wording of article 9(1)(b) makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the relevant party must set out the reasons why it considers that the disclosure of the information at issue could specifically and actually undermine the course of justice as set out by the CJEU at paragraph 69 of Land Baden-Wurttemberg v DR, Case C-619/19. The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical.
23. The requirements outlined above mean that a relevant party must examine the information in question before it can invoke grounds for refusal of that information. Where grounds for refusal are identified, the information should be examined to determine whether certain information may be released without adversely affecting the course of justice.
24. The investigator assigned to this appeal wrote to DAA on 15 February 2024 seeking further information on its reliance on article 9(1)(b) of the AIE Regulation, including the precise nature of the legal proceedings, enquiry, or investigation referred to by it. It was also asked to explain why it considered that, on balance, the public interest would not be better served by the disclosure of the records. The investigator also asked the appellant to consider whether there was any material contained in the information requested in respect of which partial disclosure could be made, in accordance with article 10(5) of the Regulations (i.e. information which could be separated from the information to which the exceptions in article 9(1)(b) might apply).
25. In submissions to this Office dated 21 March 2024, DAA re-iterated its position that the information contained in Records 2 and 3 should not be disclosed. Notably however, it provides no further information to indicate what legal proceeding or formal inquiry is involved or how the information concerned could prejudice same, nor is any reasonable consideration given to the necessary public interest test. It also repeated its position, as previously outlined to the Council, that in the event that a decision is taken to disclose the documents, “[DAA] reserves the right to offer alternative redacted versions of Records 2 and 3 should that become necessary”. Significantly though, DAA at no point proffered any alternative versions of the documents or even alluded to what redactions it considered may be relevant to diminish any potential adverse effect of disclosure.
26. DAA submits that, “Dublin Airport, like many other airports, fire stations, and industrial and manufacturing sites worldwide, have become aware of the emerging pollutants of concern (PFAS chemicals), is carrying out a site assessment. Monitoring is ongoing in order to complete this assessment process and to inform how best to manage any risks. Dublin Airport has engaged with the [EPA] and [the Council] in managing this issue. We have allocated resources to proactively manage this issue to protect human health and the environment. The position is evolving and [DAA] finds itself in a position of unknown territory at the moment whilst it awaits expert opinions and reports. When ready, these reports will be publicly available, serving the public interest on the subject.”
27. It can be noted that certain reports were published by DAA on 10 April 2024 (see: https://www.dublinairport.com/corporate/environmental-social-governance/sustainability ), relating to a risk assessment of PFAS on the grounds of Dublin Airport and containing the results of the environmental monitoring between August 2021 and November 2023. These published reports however do not, in my opinion, have any bearing on the question of release of the records at issue in this appeal, which can be observed to contain environmental monitoring data up to July 2021.
28. DAA submits that “Given the emerging nature of this issue, various proceedings have issued in the High Court, the subject matter of those legal proceedings is confidential and not yet in the public domain. To this end, the exemption of Article 9(1)(b) of the AIE Regulations applies as the documents held may be relied upon in court proceedings.” However, it is necessary to note that the fact that information may relate to ongoing legal proceedings does not, in and of itself, establish that its disclosure would adversely affect the course of justice; otherwise the AIE Regulations would provide for a class-based exemption for such information, which they do not.
29. On 19 April 2024, this Office wrote again to DAA requesting final submissions as to why the information at issue should be refused under article 9(1)(b) of the AIE Regulations. In a response dated 1 May 2024, DAA did not attempt to address any of the specific queries raised by the investigator, however it submits the following – “We are considering whether to release further material (including the records listed) and would be open to reviewing the whole request again in light of the new information made public. We are also happy to reach out to [the Council] to discuss.”
30. DAA has not identified any specific legal proceedings pertaining to the records at issue or explained how the information sought is relevant to those proceedings. Furthermore, DAA has not attempted to show how the release of the records could adversely affect the course of justice; or that any such expectation of an adverse effect is reasonably foreseeable within the terms of the exemption. Without this information (which was specifically requested by this Office), it is not possible for me to find that the information sought is relevant to the proceedings, or to find that the course of justice would be adversely affected by the release of the requested information.
31. Overall, in the circumstances of this case and having examined the content of the records at issue, I find that article 9(1)(b) does not apply to the information sought.
32. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the Council’s decision to release the information contained in Record 2 and Record 3.
33. 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