Decision
Mr K and the National Standards Authority Ireland (NSAI)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0001
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0001
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 2018 (the AIE Regulations)
In 2014 Kilkenny County Council contracted an engineering company to build a bridge over the River Nore as part of the Kilkenny Central Access Scheme. The River Nore is a Special Area of Conservation.
The contractor’s website says that its “Quality Management System is registered to ISO 9001 by NSAI”. NSAI is Ireland’s official standards body. Its website says that: “NSAI Certification creates, maintains and promotes accredited certification of products, services and organisations for compliance with recognised standards, from business management systems to product approvals. It issues certification confirming the quality and safety of goods and services produced and traded in Ireland.”
The appellant lodged a complaint with NSAI about the contractor. It would not be appropriate for me to repeat or provide a detailed description of the complaint in this decision. However, I will say that it consisted of two parts: one about the bridge-building project and another about a health and safety issue involving the same engineering company while it was working on a job unconnected with the bridge building project.
NSAI assigned the reference ‘NSAI Inc. no. 1316’ to the complaint and conducted an investigation. On 5 January 2018 the appellant asked NSAI for an update on his complaint.
NSAI replied by saying that, while it had fully investigated the complaint, “NSAI certification is confined to the contractor and so the above investigation is solely confined to the contractor”. NSAI concluded by saying that “this matter is now closed”. In other words, the appellant was told that his complaint had been investigated but he was not informed of the findings of the investigation on that occasion. However, NSAI had earlier told the appellant in an email dated 4 February 2016 that:
“A review undertaken of the planning and legal documentation confirmed that the company acted in accordance with the decisions of An Bord Pleanála, supporting the positions of both Kilkenny County Council and the company. The investigation gave rise to no major non-conformances in respect of the company’s management systems.”
On 7 November 2017 the appellant submitted an AIE request to NSAI seeking copies of:
1. The investigation file and or any other relevant files etc. (under two general headings of Environmental or Occupational Health and Safety) undertaken by NSAI into the above referenced “Kilkenny query re JCL (your ref: NSAI Inc no. 1316).
2. All draft reports/reports, draft memoranda/memoranda, recommendations
and correspondence with the contractor and Local Authority in question, if any.
3. All internal and external email / correspondence relating to this query/complaint.
On 1 December 2017, NSAI informed the appellant that it had decided to refuse the request.
The appellant immediately asked NSAI to review that decision. NSAI notified the appellant of its internal review decision on 2 January 2018. This decision affirmed the earlier decision and the appellant subsequently appealed to my Office.
NSAI received the request for internal review during business hours on 1 December 2017.
Accordingly, the appellant was entitled to receive a decision on that request, at the very latest, one calendar month later, on 31 December 2017. As he did not receive a decision by that date, the law deemed that NSAI had again refused his request.
I am satisfied that NSAI intended in good faith to give notice of its decision in time but failed to do so due to its misunderstanding of how ‘a month’ is calculated in law. For statutory interpretation purposes, ‘a month’ means a calendar month (source: Part 1 of the Schedule to the Interpretation Act 2005) . A month which starts anytime on the 13th day of a month will include that day and expire at the end of the 12th day of the following month (ref: Walsh v Garda Complaints Board [2010 IESC 2). ]
Under article 12(5) of the AIE Regulations, my role is to: review NSAI’s refusal; annul, vary or affirm it; and decide whether it would be appropriate for me to require NSAI to make environmental information available to the appellant. The issue in this case was whether certain information is environmental information within the meaning of the AIE legislation.
In conducting my review I took account of the submissions made by the appellant and NSAI.
I 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.
Reasons for refusal
NSAI gave reasons for its refusal in its original decision and reaffirmed them in its late issued internal review decision. Both decisions stated that:
1. The [AIE] request is identical in substance and content to the information requested [by the appellant] on 19 January 2016.
2. The records retained by NSAI do not fall within the remit of AIE Regulations as the records requested are not construed as environmental information as defined under the Regulations.
3. In accordance with the provisions of the Regulations on appropriate referral of requests, you are advised to contact Kilkenny County Council regarding the records you are seeking.
The first point could not justify refusal since article 10(3) requires a public authority to consider each request on an individual basis.
The third point purported to refer the appellant to direct his AIE request, if he so wished, to Kilkenny County Council. Article 7(6)(b) provides for such referrals in circumstances where the requested information is not held by the public authority which has received the request.
Article 7(5) requires a public authority to inform the appellant, as soon as possible, that it does not hold the requested information. NSAI did not do this. Accordingly, NSAI’s purported referral of the request was neither appropriate nor properly conducted.
This left me to consider the merits of NSAI’s second point, i.e. its finding that the requested information is not environmental information. I therefore directed my attention to identifying and considering the relevant records.
Identifying the records to be considered
NSAI provided my Office with a copy of what it says are the relevant records, along with a schedule listing them as 31 numbered records, several of which are email chains. As in every case, I considered whether I had been given all of the relevant records. The appellant had described NSAI’s investigation (in a submission to my Office) as “an environmental investigation”. It is clear to me, however, that while NSAI confirmed to the appellant that it had fully investigated his complaint “under two general headings of Environmental and Occupational Health and Safety” (as the appellant had requested), NSAI did not see its investigative role as involving the carrying out of an environmental or ecological investigation of the type which was apparently envisaged by the appellant. Indeed NSAI said to the appellant, in an email, “You may have confused NSAI’s role with other State agencies”. In any event, while the records do not contain the kind of information that the appellant appears to have expected them to contain, they appear to be complete in the light of NSAI’s account of what its investigation involved. Accordingly, in the absence of any reason to believe otherwise, I accept that the records given to my Office are a complete copy of the relevant records held by NSAI.
Five of the records were created after the date of the AIE request. I examined those records and found that four are records of correspondence between NSAI and OCEI that were created in response to this appeal case. I am satisfied that those records do not contain environmental information that was held by NSAI at the relevant time and I therefore regard them as outside of the scope of my review. The fifth record is an internal NSAI email assigning one of its staff with the task of carrying out an internal review of NSAI’s original decision on the AIE request. Once again, I am satisfied that this record does not contain environmental information that was held by NSAI at the relevant time and I therefore regard it as out of scope. (I would not usually describe, in a decision, the contents of records which I regard as being outside of the scope of my review. However, in this case NSAI consented to me so doing. By describing the contents I hope that the appellant will be able to see that making a new AIE request for the information that I have found to be out of scope of the this review would be unlikely to be worthwhile.)
Of the remaining records, many had been either created by or sent to the appellant. My investigator asked him about these and he agreed to exclude them from the scope of his appeal. Accordingly, they are outside the scope of my review.
This left seven records to be considered: records numbered 5, 6, 7, 8, 11, 12, and 13. These are the records that are within the scope of my review.
Whether the records contain environmental information
The AIE regime concerns access to environmental information and not access to records per se. I considered the contents of records 5, 6, 7, 8, 11, 12, and 13 in the light of the definition of environmental information and the interpretation of that definition by the courts.
The AIE Regulations define “environmental information” as meaning any information in written, visual, aural, electronic or any other material form on—
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c).
I invited the parties to make submissions on this issue. NSAI chose not to make a submission. The appellant made a submission and, as is unavoidably always the case in AIE appeals, had to make his case without knowing the actual contents of the relevant records.
He submitted that his complaint and NSAI’s investigation are both “very clearly environmental in nature and the documents sought should reflect that”. He argued that any emails relating to NSAI’s investigation “undoubtedly relate to information ‘on’ the environment”.
The appellant argued that this matter concerns ongoing emissions into the river. While article 10(1) of the AIE 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”, I understand that this article applies only to withheld environmental information and not to any other kind of information. It is also the case that article 10(1) only applies when a request has been refused on grounds provided by articles 8 or 9. As NSAI did not rely on such grounds, article 10(3) has no relevance to issue that is now before me.
The appellant also argued that the High Court held in its judgment in Right to Know CLG and An Taoiseach and the Minister for Communications, Climate Action and Environment [2018 IEHC 372 ] that EU law trumps national law, and therefore (he argued) NSAI is “not entitled to confidentiality that would impede the reach of the AIE Regulations”. As NSAI did not refuse the request on the ground of confidentiality, this argument is not relevant to this review.
I carefully considered the withheld information in order to determine if any of it falls within one or more of the six categories of environmental information. In doing so I took care to consider the relevance and context of the information and did not merely examine each piece of information in isolation. I was mindful of the aims of the legislation and the need to adopt a purposive approach to its interpretation.
I concluded that none of the information fell within the categories of environmental information that are defined in paragraphs (a), (b), (d), (e) or (f).
I carefully considered if any of it fell within the category defined in paragraph (c). The appellant cited paragraphs 12 – 27 of the English judgment DfT, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018 UKUT 127 (AAC) ] in relation to ‘what constitutes environmental information’. This judgment emphasised that the definition must be interpreted in accordance with the purpose of the AIE Directive and the Aarhus Convention and that, while the term ‘environmental information’ must be construed broadly, “there are limits to the broad approach”. The judgment relied in part on the earlier judgment Department for Business, Energy and Industrial Strategy v Information Commissioner and Henney [2017 PTSR 1644. ] That earlier judgment addressed the relationship between information and a measure or activity affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) of the definition, as well as measures or activities designed to protect those elements. It said that “it is first necessary to identify the relevant measure” and it noted that “it is possible for information to be ‘on’ more than one measure”.
The appellant submitted that information is environmental information if it information on one of the six categories of environmental information and that “the information itself doesn’t have to fit within one of the six categories to be environmental information”. I do not see the point of that argument: if information is information on one of the six categories, then it falls within that category and is environmental information.
In the current case it is clear that the plan to build a bridge over the River Nore was a measure that affected elements of the environment and the building of the bridge was an activity which affected elements of the environment. I do not regard the NSAI complaint investigation process itself as such a measure or activity. Nor do I regard the latter as a measure or activity “designed to protect” elements of the environment since such NSAI “audits” or “investigations” (i.e. those concerned with ensuring compliance with ISO 9001 Quality Management System standards) are not designed to protect the environment. I concluded from these considerations that four of the withheld records contain environmental information on the bridge-building measure/activity: records numbered 6, 7, 8 and 13.
Record no 8 contains information on the bridge-building project which, for that reason, falls within the definition of environmental information. However, article 4(1) of the AIE Regulations provides that:
“These Regulations apply to environmental information other than, subject to subarticle (2), information that, under any statutory provision apart from these Regulations, is required to be made available to the public, whether for inspection or otherwise.
(2) Notwithstanding—
(a) section 38 of the Planning and Development Act 2000 (No. 30 of 2000) and any regulations made thereunder,
(b) sections 10 and 31 of the Air Pollution Act 1987 (No. 6 of 1987) and any regulations made thereunder, and
(c) sections 6 and 89 of the Environmental Protection Agency Act 1992 (No. 7 of 1992)(as amended by the Protection of the Environment Act 2003 (No. 27 of 2003)) and any regulations made thereunder, environmental information held by, or on behalf of, a public authority shall be made available in accordance with these Regulations.”
I noted that section 146(5) of the Planning and Development Act 2000 requires information of the type contained in record no. 8 to be made public. Accordingly, article 4(1) applies and article 4(2) does not apply. I concluded, therefore, that the AIE Regulations do not apply to the environmental information contained in record no.8 and I did not consider it further.
That left the information in records numbered 6, 7 and 13 to be considered.
I found that records number 6 and 7 both contain the same environmental information (specifically, information on the bridge-building project, as a measure which affected elements of the environment within the meaning of the AIE Regulations). I note that the gist of this environmental information is already publicly available. For example, an internet search for the keywords “Kilkenny Bridge” and “dispute” carried out on 30 July 2018 quickly revealed the same information. Notwithstanding this, the AIE Regulations do not cease to apply to environmental information simply because it is publicly available.
I also found that records number 6 and 7 also contain information that is not environmental information on its own merits (including when considered in context) and that is not contextual information that would aid a reader in understanding the environmental information that is present. In addition, some of the information in record no.6 is the same information that is in record no.8 and the AIE Regulations do not apply to that information for the same reason that they do not apply to record no.8.
I found that record no.13 contains some environmental information and some information that is neither environmental information on its own merits (including when considered in context) nor contextual information that would aid a reader in understanding the environmental information.
Whether I should require NSAI to provide the appellant with access to the withheld environmental information
When a public authority has refused an AIE request on the ground that the requested information is not environmental information and I find that some or all of the information is environmental information, I consider that I should give the public authority an opportunity to consider my finding and (unless it appeals that finding to the High Court) make a fresh decision on whether to provide access to what I have identified as environmental information.
Having reviewed NSAI’s refusal decision, I find that it was not completely justified because some of the information refused on the ground that it is not environmental information is environmental information. Under the power given to me by article 12(5), I therefore vary NSAI’s decision and require NSAI to further process the AIE request in respect of the environmental information outlined in the appendix to this decision.
In the interests of clarity, I expect NSAI to do the following:
1. If it decides to appeal this decision to the High Court, to immediately inform the appellant of that fact.
2. If it decides not to appeal this decision to the High Court, to immediately inform the appellant of the date by which he can expect to receive a fresh decision and be informed of a right to request an internal review. Such a date should be within one month of NSAI’s decision not to appeal, unless NSAI extends time in accordance with article 7(2)(b) of the AIE Regulations.
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