Decision
Mr. T and RPS Consulting Engineers Ltd (RPS)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0015
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0015
Published on
Decision of the Commissioner for Environmental Information on an appeal made under article 12(5) of the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations) Case CEI/17/0015
Due to complaints of noise nuisance from wind farms in north Wexford, Wexford County Council (the Council) commissioned RPS Consulting Engineers Ltd (RPS) to carry out a noise survey of the sound emitting from four wind farms and their wind turbines and prepare a report on each wind farm (noise monitoring programme) . The purpose of the noise monitoring programme was to:
RPS was contracted to carry out the noise monitoring programme on foot of a public procurement process by the Council. The Council published a tender for the noise monitoring programme in January 2015. This was followed by the establishment of a framework for the supply of noise monitoring in May 2015. The Council appointed RPS to carry out the noise monitoring programme in December 2015 pursuant to a services contract and framework agreement between the Council and RPS. The final reports from the noise monitoring programme are available on the Council's website www.wexfordcoco.ie.
On 13 February 2017, the appellant made a request to RPS under the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations) for a list of information relating to the noise monitoring programme. The request sought the following information:
a. Access to all sound meter data measurements inter‐alia L90, L10, Leaq to be supplied in spread sheet loadable format
b. Access to the same sound meter data in its original exported format for loading into the sound meters manufactures analysis software
c. Access to audio files collected
d. Access to wind speed & direction data plus rainfall data
e. Access to all SCADA data collected from or provided by the wind farm operators to include inter‐alia individual turbine on/off, individual turbine mode, individual turbine output data
f. Access to any other measurement or observational data collected".
The appellant did not receive a response to this request.
On the 15 March 2017, the appellant wrote to RPS informing it that as he had not received a response to his request it was deemed refused and he requested an internal review of that refusal. The appellant stated in his internal review request that as RPS was contracted to carry out work by the Council it was "potentially a public authority" under article 3(1)(c) of the AIE Regulations. In support of this the appellant cited part 3 of the judgment of the Court Justice of the European Union (CJEU) in C-279/12 Fish Legal and Emily Shirley v Information Commissioner and Others (Fish Legal).
RPS wrote to the appellant on 16 March 2017 notifying him that it was not a public authority for the purposes of the AIE Regulations. It stated that RPS was a private limited company and that it was not under any obligation to provide the appellant with information under the AIE Regulations. In support of this it stated that:
In support of its position that it was not a public authority for the purposes of the AIE Regulations, RPS cited the judgment of the CJEU in Fish Legal and my decision in CEI/16/0007 (Mr. L and Wexwind Limited), which is available on our website www.ocei.ie .
Article 12(3) of the AIE Regulations provides a right of appeal to my Office where a decision by a public authority has been affirmed under article 11. Article 11 deals with internal reviews by public authorities of their decisions on AIE requests. Article 11(5)(a) provides that I may review refusal decisions made "on the grounds that the body or person concerned contends that the body or person is not a public authority". RPS contends that it was not a public authority within the meaning of the AIE Regulations. This review is therefore limited to the question of whether RPS was a public authority within the meaning of the definition of public authority in article 3 of the AIE Regulations. In conducting my review I have had regard to the correspondence and submissions of the parties and to:
Relevant AIE provisions
Article 3(1) of the AIE Regulations provides that “public authority” means, subject to sub-article (2)—
(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are held—
Article 3(2) provides that the definition "does not include any body when acting in a judicial or legislative capacity".
The appellant’s position
The appellant submitted that RPS was a public authority for the purposes of the AIE Regulations as it provided public services and/or functions relating to the environment on behalf of Wexford County Council. He also stated that RPS was under the control of the Council when providing those public services and/or functions. The appellant submitted that this was only in respect of the work RPS were doing for the purposes of the noise monitoring programme which it had been contracted to do by the Council. As a result, the appellant submitted that RPS was a public authority within the meaning of the definition at article 3(1)(c) of the AIE Regulations. Although I will not reiterate every argument made by the appellant, I have had regard to each and every argument he made in his submissions to my Office, and in his on-going correspondence with my Office, during the course of this review.
Public services and/or functions
The appellant submitted that the noise monitoring programme including the monitoring, reporting and all work associated with the programme was a public service and/or function relating to the environment. In support of this the appellant submitted that the Council is statutorily obliged to investigate noise complaints under the Environmental Protection Agency Act 1992 (as amended) and the Planning and Development Act 2000 (as amended), and that due to a lack of internal skills to carry out that investigation, it outsourced that investigation to RPS via a public tender and contract for a noise monitoring programme and assessment reports. The outsourcing of that investigation to RPS, which is a function of the Council, resulted in RPS providing a public service and/or function. In support of this he cited the European Union (Award of Public Authority Contracts) Regulations 2016 (S.I. No. 284/2016), specifically the definition of a "public service contract". He also cited the decision of the United Kingdom (UK) Information Commissioner in FER0090259 (Environmental Resources Management Ltd (ERM)). In addition, the appellant submitted that as the contract between the Council and RPS was funded with public money, the service and/or function provided by that public money was a public service. The appellant cited the judgment in RPS Consulting Engineers Limited v Kildare County Council [2016 IEHC 113 ] in support of the public service argument, which is available on the Courts Service website www.courts.ie .
Under the control of
The appellant submitted that the Council in tendering for, and contracting out, its investigation to RPS had contractual and statutory control over RPS. Specifically, that the Council controlled RPS in how it conducted and executed the requirements of the tender for the noise monitoring programme. He also submitted that RPS was only carrying out the noise monitoring programme as it was under contract to do so, and that the requirement on the Council to investigate the noise complaints and monitor compliance with planning law directly affected how RPS performed its service and/or function. The appellant stated that the contract between the Council and RPS strictly controlled the content and context of the noise monitoring programme. He submitted that, as in any contract for work, RPS could advise and suggest the best way of doing things but that everything had to be done with the approval of the Council. The appellant also stated that RPS could not make decisions without the Council’s approval or prior authorisation. By way of example, the appellant cited the fact that RPS received permission from the Council before engaging with him. In support of his argument that RPS was under the control of the Council, the appellant cited the judgment of the CJEU in Fish Legal and the judgment of the UK Upper Tribunal in Fish Legal v Information Commissioner [2015] UKUT 0052 (AAC). The appellant also rejected my finding in CEI/16/0007 that Wexwind was not a public authority.
In addition, the appellant submitted arguments in relation to the processing of personal data and data protection. The primary argument he made was that for the purposes of the Data Protection Act 1998 and 2003 (as amended) the Council was the data controller and RPS was its data processor in respect of any personal data collected by RPS during the course of the noise monitoring programme and was therefore under the control of the Council. He continued that there was a possibility that RPS may be a joint data controller with the Council. In addition, he stated that if RPS only released a sub-set of the information it gathered from the noise monitoring programme to the Council upon completion of the project, then it was a public authority as it would be holding environmental information which it would have collected while carrying out a public service that was paid for by public money.
Complaints concerning data protection are not under my jurisdiction, which is concerned only with reviewing decisions of public authorities under the AIE Regulations. I will only consider the appellant's data protection related arguments to the extent that they are relevant to consideration of whether RPS is a public authority for the purposes of the AIE Regulations.
RPS’s position
RPS submitted that it was a private limited company whose employees are bound by the obligations and duties of the Companies Acts and that it does not operate under the control of a public authority. It stated that it provides independent professional consultancy services and that it was not dependent on any external entity for financing. It continued that the contract between RPS and the Council was a "commercial agreement conducted at arm’s length after selection under a public procurement competition".
Public services and/or functions
RPS in its submission stated that it does not have public responsibilities or functions nor does it provide public services. It submitted that the nature of its services are not 'public services'. RPS stated that public services are usually provided directly by the State to the public, subject to regulation that is in excess of that which applies to most economic sectors, and that such services are generally connected to fundamental human rights. In support of its position it cited the following pieces of legislation governing 'public services bodies' such as Departments of State, the civil service, An Garda Síochána, local authorities, the Health Service Executive:
RPS continued that it was not a public authority for the purposes of the AIE Regulations as it was not established pursuant to statute, it did not have special powers conferred on it by the State and it was not funded by the State. It stated that it did not provide "public services" such as that which are provided by "public bodies". It also submitted that it did not provide services directly to the public; rather it provided its services as part of business transactions. In this case, it stated that the service it provided was to the Council and were provided by a private operator to a public service body.
RPS stated that in this case it was contracted by the Council to:
RPS stated that it was the Council who determined if any further investigations needed to be carried out and whether it would pursue any enforcement action.
RPS also submitted that the awarding of the contract by the Council through a public procurement competition was not relevant to the determination as to whether or not was it providing public services. In support of this it cited Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC (Directive 2014/24/EU), which is available on EUR-Lex http://eur-lex.europa.eu/homepage.html . It also cited S.I. No. 284/2016 which transpose that Directive.
Article 1(2) of Directive 2014/24/EU provides that:
Regulation 2 of S.I. No. 284/2016 defines a "public contract" as a:
The definition of contracting authority in S.I. No. 284/2016 includes local authorities.
RPS submitted that the Council, which is a contracting authority, ran a public procurement competition to obtain noise monitoring services. RPS stated it is clear from article 1(2) of Directive 2014/24/EU that "the use of a public procurement process by a local authority does not automatically mean that the contract is for a "public purpose"." RPS also submitted that Directive 2014/24/EU and S.I. No. 284/2016 specifically provide that contracts coming within their remit are for "pecuniary interest" and the fact that the contact was paid for through public funds did not make it a contract with public purposes. It continued that paying for a contract between a local authority and a private economic operator through public funds did not render the services contracted for as a "public service".
Under the control of
RPS submitted that the services it carried out were entirely independent of the Council and were not done under the direction, power or control of the Council. It also stated that RPS had full autonomy in the delivery of the contract and that the methodology was one of the determining factors in awarding the contract. It submitted that the CJEU in Fish Legal ruled that a body is under the control of a public authority where it does "not determine in a genuinely autonomous manner the way they perform their functions due to a decisive influence" of the public authority. It stated that decisive influence was defined by the CJEU as the power to:
It stated that Council has none of these powers over RPS.
Regarding data gathered by RPS during the course of the noise monitoring programme, RPS stated that its contract required it to provide the Council with two hours of screened audio data per site. It also stated that it did not retain any additional data once it had completed its work and that any remaining data was destroyed once the project requirements had been meet and therefore that it does not hold any such data.
Wexford County Council's position
My investigator invited the Council to make a third party submission in this appeal. In its submission the Council stated that the service provided by RPS on foot of the contract was "a specialist measurement service to assist with the determination an environmental problem exists". The Council also stated that RPS was not assigned a particular function or environmental service in its entirety to be provided to the public on behalf of the Council. The Council stated that RPS carried out a role under the contract as "an environmental specialist to measure specific environmental problem" and that the responsibility of providing a wider function or service to the public was not outsourced to RPS.
In National Asset Management Agency v Commissioner for Environmental Information [2015 IESC 51 ] (NAMA), which is available on the Courts Service website www.courts.ie , O'Donnell J. considered the significance of that part of the definition of public authority which follows the words "and includes", and concluded that "it was not here intended to operate as extending the meaning of the prior paragraphs", i.e. paragraphs (a), (b) and (c). There are therefore just three categories of public authority within the meaning of the AIE Regulations. Since they are listed in article 3 of those Regulations in paragraphs (a), (b) and (c), I will refer to them as public authorities of types (a), (b) and (c).
Type (a) and type (b) public authority (as per article 2(2)(a) and (b) of the AIE Directive)
It was accepted by the parties to this appeal that RPS was not a public authority within the meaning of the definition at article 3(1)(a) or (b) of the AIE Regulations. RPS was not a government or other public administration including a public advisory body within the meaning of paragraph (a) of the definition of public authority. Neither was RPS authorised by law to perform a public function within the meaning of paragraph (b) of the definition of public authority. Accordingly, I accept that RPS was not a type (a) or type (b) public authority. Therefore, the issue at the centre of this appeal was whether RPS was a type (c) public authority.
Type (c) public authority (as per article 2(2)(c) of the AIE Directive)
The AIE Regulations, the AIE Directive and the Aarhus Convention are primarily concerned with public authorities. The AIE Regulations, the AIE Directive and the Aarhus Convention do not provide a right of access to environmental information that is held by private persons or bodies. However, the definition of public authority is broad in nature and can potentially include private bodies. Private bodies are capable of being public authorities if they fall under paragraph (c) of the definition of public authority. A type (c) public authority is “any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b)”. I am unaware of any legal authority on how this specific provision is to be interpreted. It is not disputed that RPS is a legal person.
There are three elements to consider when determining whether a body is a public authority within the meaning of the definition at article 3(1)(c) of the AIE Regulations. They are:
All three elements must be met for a body to be a type (c) public authority.
Public responsibilities, functions or services
Turning to the first element of the test namely whether RPS had public responsibilities or functions or provided public services. As noted above the appellant submitted that RPS, in the context of the noise monitoring programme it was contracted to do by the Council, was providing public services and/or functions. Article 3(1)(c) of the AIE Regulations requires a natural or legal person to either have public responsibilities or functions or provide public services. I note that there is distinction in article 3(1)(c) between the public responsibilities and functions part of the test and the public services part. In the former article 3(1)(c) provides that “any natural or legal person having public responsibilities or functions” under the control government or other public administration body or any natural or legal person performing public administrative functions under national law is a public authority. Whereas in the latter it provides that “any natural or legal person … providing public services” under the control government or other public administration body or any natural or legal person performing public administrative functions under national law is a public authority.
The Aarhus Guide states at page 47 that the term "public responsibilities or functions" is intended to be broader in nature than the term "public administrative functions" (paragraph (b) of the definition). It continues that the latter indicates a connection between law and State administration. Regarding persons that have 'public responsibilities or functions', the Aarhus Guide goes on to say that this "covers natural or legal persons that are publicly owned, for example, community-owned public service providers". RPS was a private company which provided the Council with professional services for a pecuniary interest under a contract that was awarded as a result of a competitive process. I have seen nothing in the course of this review to indicate that it had public responsibilities or functions. This can be contrasted with the Council which has public functions. In this case those public functions included monitoring noise from windfarms in order to carry out its obligation to investigate noise complaints and monitor compliance with planning conditions. RPS was contracted by the Council to provide it with professional services in the form of noise monitoring programme; the services RPS provided enabled the Council to carry out its functions. I am satisfied that RPS did not carry out the Council’s functions, either directly or indirectly, on the Council’s behalf. Therefore, I am not satisfied in the circumstances of this case that RPS had public responsibilities or functions. In my view, the issue in this appeal is whether RPS, in carrying out the noise monitoring programme, was providing public services.
The AIE Regulations, the AIE Directive and the Aarhus Convention do not define 'public services'. As I stated in CEI/16/0007 "[t]he concept of a public service is not static, and what constitutes a public service is often a matter of social consensus". 'Public services' exists to, as the term itself suggests, provide the public with particular goods or services. Thus, the relevant service must be provided to the public. Such public services generally exist because there is a public need for them or there is a general interest in the service being provided. The need or interest is that of the people as a collective, either nationally or locally.
The Aarhus Guide makes it clear that public services can be supplied by the State or by private bodes. The Aarhus Guide remarks at page 47 that the provision in paragraph (c) "reflects certain trends towards the privatization of public functions". Similarly, the proposal for the AIE Directive - Proposal for a Directive of the European Parliament and of the Council on public access to environmental information (COM/2000/0402 final - COD 2000/0169), which is available at EUR-Lex http://eur-lex.europa.eu/homepage.html - by the European Commission also makes it clear that the privatisation of public functions can fall within the definition of public authority. It states, in the context of what went on to become paragraph (c) of the definition, that:
In my view there is a distinction between the delegation of public services to private persons or bodies and public procurement. A public authority can through public procurement purchase works, goods or services in order to meet its own operational needs. This can be contrasted with the delegation of public services, where a public authority delegates the actual provision of public services which are provided to members of the public to another body. While it is clear that the privatisation of public services is not necessarily sufficient to remove bodies which provide services to the public relating to the environment from the scope of the public authority definition, I am not satisfied in the circumstances of this case that the Council delegated its public service obligations or functions to RPS.
I accept that RPS was contracted to independently carry out the noise monitoring programme and prepare reports on the results of that programme for the Council. RPS and the Council submitted that RPS provided professional services to the Council, that it did not provide services to the public. I am satisfied that the Council through a public procurement process obtained RPS's professional services in order to enable the Council to carry out its obligation to investigate noise complaints and monitor compliance with planning conditions. RPS reported its findings and analysis on the noise monitoring programme to the Council which then determined whether any further investigations were required or whether enforcement action would be taken. I accept that the responsibility of providing a wider public function or service to the public was not outsourced to RPS. Thus, I am satisfied that the Council was solely responsible for carrying out its obligations and that its obligations were not delegated, or outsourced, to RPS. In addition, I am satisfied that RPS in carrying out the noise monitoring programme did not at any time provide services of any kind to the public. The services it provided were professional services to the Council for the purpose of meeting its operational needs in order to enable it to carry out its obligations. Accordingly, I am not satisfied that RPS in carrying out the noise monitoring programme provided public services, and thus was not a type (c) public authority.
For the reasons outlined above, I do not regard RPS as government or other public administration, including a public advisory body under article 3(1)(a) of the AIE Regulations. Neither do I regard RPS as a natural or legal person performing public administrative functions under national law under article 3(1)(b) of the AIE Regulations. Therefore, I must find that RPS was not a public authority within the meaning of the definition at article 3(1)(a) or (b) of the AIE Regulations.
In addition, I do not regard RPS as "having public responsibilities or functions" or as "providing public services" within the meaning of the definition at article 3(1)(c) of the AIE Regulations. As I have not found that RPS had any public responsibilities or functions or provided public services, I must therefore find that RPS was not a public authority under article 3(1)(c) of the AIE Regulations. In light of this conclusion, no useful purpose would be served by considering whether the service RPS provided the Council with related to the environment or whether it was “under the control of a body or person falling within paragraph (a) or (b)” of the definition of public authority.
Further observations
I would like to add that although RPS is not a public authority within the meaning of article 3(1) it was contracted by the Council, which is a public authority, to provide it with noise monitoring services. The noise monitoring services that RPS provided to the Council enabled the Council to carry out its public functions. As a result, RPS may have been acting on behalf of the Council. Article 3(1) provides that ““environmental information held for a public authority” means environmental information that is physically held by a natural or legal on behalf of that authority”. The effect of this is that if environmental information exists and is held for a public authority by another person or body the authority should make that environmental information available in the normal way. Therefore, there is a possibility that the environmental information RPS possesses in relation to those services is held for the Council. Without prejudice to any AIE request that might be made to the Council and any subsequent appeals to me, it is open to the appellant to the make an AIE request to the Council for information relating to the noise monitoring programme. This would be without prejudice to the use by the Council of any of the grounds for refusing access to information set down in the AIE Regulations.
Having completed my review, I find that RPS was not a public authority within the meaning of the definition in article 3(1) of the AIE Regulations. Accordingly, RPS was not obliged to process the appellant’s request for access to environmental information and I have no further jurisdiction in relation to this matter.
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