Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132492-C9F8H9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132492-C9F8H9
Published on
Whether information requested by the appellant is “environmental information” within the meaning of article 3(1) of the AIE Regulations
1. On 17 October 2022, the appellant wrote to the Department of Agriculture, Food and the Marine (the Department) requesting that the following information be “provided in an electronic form, as soon as is possible”:
(1). All information relating to any plans by FS-DAFM to review the operability and effectiveness of the Forest Licence Viewer.
(2). All reports and complaints regarding issues with the operability and effectiveness of the Forest Licence Viewer.
2. The Department responded to the appellant on 3 November 2022, refusing access to the information on the grounds that “the request does not meet the definition of ‘environmental information’ as set out in article 3(1) of the AIE Regulations”. By way of explanation, the Department stated that “While the FLV contains environmental information, it, in itself is not environmental information. Therefore, the functionality of this database is not considered to fall within the scope of environmental information as set down by the legislation.”
3. The appellant immediately sought an internal review of the Department’s decision on 3 November 2022, submitting that the decision “has not provided any reasoning as is required under Article 7(4) of the Regulations.”
4. The Department issued its internal review decision on 28 November 2022. The internal review affirmed the original decision, on the basis that “Technical information on the operationality of the Forestry Licence Viewer is not environmental information for the purposes of the AIE legislation, namely Article 3.”
5. The appellant submitted an appeal to this Office on 21 November 2022.
6. I am directed by the Commissioner for Environmental Information to complete a review under article 12(5) of the Regulations. In doing so, I have had regard to submissions made by the appellant and the Department in this matter. I also have had regard to:
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Positions of the Parties
8. The Department’s original decision took the view that the information sought relating to the “functionality” of the FLV was not environmental information, acknowledging albeit that the database contains environmental information, it asserted that, “[the database], itself is not environmental information” within the meaning of article 3(1) of the AIE Regulations.
9. The appellant stated in his request for internal review, his opinion that the Department had provided insufficient explanation for this decision. The appellant added that “the Commissioner [for Environmental Information] has indicated based on case law that the interpretation of environmental information is broad.” The appellant went on to explain his reasoning for considering the functionality of the FLV to be environmental information, as follows – “The FLV is DAFM's main public interface on forestry licences. Forestry licencing is part of the Forestry Programme; therefore, my request relates to a Plan or Programme (3(1)(c)). The quality of the public interface impacts on the public's ability to participate in the likening process. Public participation is one of the pillars of the Aarhus Convention. Public participation can lead to better environmental outcomes, therefore it must be accepted that the quality of public participation can affect the factors of the environment referred to Article 3(1)(c) and my request falls within the scope of the Regulations.”
10. As part of the internal review process, the Internal Reviewer contacted the appellant, on 7 November 2022, requesting that “[he] consider narrowing the scope of [his] request and set out what environmental information [he is] looking for.” The Department requested clarity as to what aspects of the FLV the request related to. The Department also cited article 6(1)(d) of the Regulations and stated that “requests including ‘all information’ [are] too broad and would appear to go against the spirit of the AIE legislation.”
11. The appellant responded to the Internal Reviewer on 8 November 2022, citing the provisions of article 7(8) of the AIE Regulations and querying the premise of the Department to seek clarification or refinement of a request at internal review stage. The Department did not engage with the appellant on this point; nor did the appellant respond to the Department’s request for clarification. The internal review outcome, which issued on 28 November 2022, affirmed the Department’s original decision.
12. The appellant made submissions to this Office on 15 December 2022 in support of his appeal. The appellant submits that “as [his] request was made under the AIE Regulations it should be reasonable to assume that it is for environmental information.”
13. The appellant describes the purpose of the FLV , quoting text from the ‘About’ tab of the application, and restates his reasoning for considering the functionality of the FLV to be environmental information, as previously outlined in his request for internal review (see paragraph 9 above).
14. The appellant submits that the correspondence received from the Department in response to his internal review request is “contradictory”. The appellant questions how the narrowing of the scope of his request would make it a request for environmental information. The appellant considers his request to be sufficiently specific in that it is confined to “plans… to review the operability and effectiveness of the FLV... and reports and complaints regarding issues with the operability and effectiveness of the FLV”. The appellant submits that it is “reasonable to seek ‘all information’ related to clearly defined parameters.”
15. The appellant submits that the Department’s decision “introduces an artificial distinction between environmental information and technical information”. He submits that “technical information is not precluded from being environmental information” and the Department has “erred” in its decision to refuse his request.
16. The Department provided limited submissions to this Office on 02 February 2023 wherein it states that “there are no records to be submitted in this case as it was initially deemed not to be environmental information based on the request.” The Department submits that “The internal reviewer, upon trying to undertake a fresh decision requested [the appellant] to narrow the scope/to be as specific as possible as to what information he was looking for... and that the requester failed to engage with the Department in any meaningful way to enable [it] to assist him, if possible.”
17. This Office wrote to the Department on 13 July 2023, inviting it to provide further detail in a focused submission. No response was forthcoming.
18. I consider that the scheme of the Regulations and the AIE Directive, upon which the Regulations are based, makes clear that there is a presumption in favour of release of environmental information. The limited reasoning provided by the Department in support of its position that the information requested in this case did not constitute “environmental information” is unsatisfactory, particularly in view of the explicit requirements of articles 7(4) and 11(4) of the Regulations. Furthermore, the Department’s lack of engagement with my Office, including not providing any available records for the purposes of my review, is unacceptable and makes it more difficult for my Office to deal with appeals such as this in an efficient manner. It is usual in cases involving the question of whether information is “environmental information” within the meaning of the AIE Regulations that this Office is provided with the information at issue. However, the Department stated in correspondence with my Office that there were no records to be provided in this case, as it was initially deemed not to be environmental information based on the request. I am satisfied that, in the particular circumstances of this case, that I can come to a decision on whether information of the type requested by the appellant falls within the definition without consulting the information itself, in circumstances where such information does not appear to have been identified by the Department on the basis that the request falls outside the scope of the AIE Regulations. As I will set out below, I am satisfied that it is clear from the request that information relevant to that request comes within the definition provided for in article 3(1)(c) of the AIE Regulations.
19. It remains unclear to me on what basis the Department formed the view that the information sought by the appellant was limited to “technical information on the operationality of the Forestry Licence Viewer”. In any event, I note the statements made by the Department to the effect that “technical” information on the “operationality” of the FLV is not environmental information for the purposes of the AIE Regulations. Whilst the basis for this statement is not entirely clear, it may however be noted that the AIE Regulations apply to environmental information which is held by or for a public authority with “environmental information” being defined as any information “in written, visual, aural, electronic, or any other material form”, which is on a number of defined categories.
20. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
21. I note in the appellant’s submissions to this Office that he sought clarity as to whether a public authority is entitled to seek a refinement of an AIE request at internal review stage. I note also the Department’s brief submissions, wherein it makes reference to the appellant’s reticence to make a more specific request at internal review stage.
22. Article 7(8) of the AIE Regulations states that “where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.” However, in my view, the provisions of article 7(8) do not arise for consideration in this case, as the Department has not sought to rely on article 9(2)(b) as grounds for refusal.
23. The Department has refused the appellant’s request on the basis of article 3(1) of the Regulations. To that end, the scope of this review is confined to whether the information requested by the appellant is “environmental information” within the meaning of the AIE Regulations.
24. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with article 2(1) of the Directive, article 3(1) of the AIE Regulations provides that "environmental information" means:
"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) ".
25. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the above definition. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
26. In my view, paragraph (c) of the definition, which provides that “environmental information” means any information on 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, is the most relevant to this review.
27. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20, emphasis added), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ, at paragraph 19).
Identification of a measure or activity
28. In this case, the appellant’s request concerns information on plans to review the operability and effectiveness of the FLV and reports and complaints regarding issues with the operability and effectiveness of the FLV.
29. The FLV is a public portal for forestry licencing. Its purpose, as announced by the Department on its launch in December 2020 is to “provide members of the public with easier online access to forestry licence applications” and in addition that “the portal enhances public participation in decisions on forestry licences and it also continues [the] Department’s commitment to providing digital services to our customers.” I consider that the FLV is an administrative measure, within the meaning of paragraph 3(1)(c), through which the Department carries out the activity of providing information to the public on forestry licencing.
Whether the measure or activity is likely to affect or designed to protect the environment
30. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond at paragraph 63). It is also important to note that the actual outcome of a measure or activity is irrelevant.
31. Under Part 6 of the Forestry Regulations 2017 ( S.I. No. 191 of 2017 ) where the Minister for Agriculture, Food and the Marine receives an application for a licence for felling, afforestation, forest road works, or aerial fertilisation, before making a decision on the matter, he or she is required, amongst other things, to publish a notice of the application; and inform the public that any person may make a submission or observation in writing concerning the application to the Minister within 30 days from the date of publication of that notice. Documentation in respect of new applications for forestry licences received from 11 January, 2021 are visible on the FLV when the application is advertised and open for public consultation. The FLV also provides an online tool to make a submission on an application and all submissions are available to view when they are received and processed. Decisions too are accessible on the FLV as they become available, along with any assessments and supporting documentation used to arrive at the decision.
32. The FLV, with its core purpose of making information on forestry licencing publicly available is a measure with more than a remote or theoretical possibility of environmental impact as it leads to increased public access to environmental information which, as set out in Recital 1 of the Directive, contributes to more effective participation by the public in environmental decision-making and, in turn, leads to a better environment. I find, therefore, that the FLV is a measure which is likely to affect the environment.
Whether the information is on the measure or activity
33. The last question to consider here is whether the information requested by the appellant is information “on” the measure, in this case “on” the FLV. In Henney (paragraph 43), the Court suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and the AIE Directive.
34. The requested information relates to any plans by the Department to review the operability and effectiveness of the FLV, as well as any reports and complaints regarding issues with the operability and effectiveness of the application. As outlined above, the FLV plays a key role in enabling public participation in environmental decision-making in relation to forestry licencing. As noted at paragraph 28 above, the Department has admitted that improved public participation is one of the purposes of the FLV, which I have found to be a “measure” within the meaning of paragraph (c) of the definition of “environmental information”. It follows therefore that information concerning the “operability” and “effectiveness” of the FLV, for example, the usability of the application, is integral to the FLV as it has a significant impact on the extent of, and perhaps even the success of, public participation. I consider this information to be clearly “on” the FLV which, as outlined above, is a category (c) measure within the meaning of article 3(1) of the AIE Regulations.
Conclusion
35. I am satisfied that the information requested by the appellant in this case falls within the definition of “environmental information” contained in article 3(1)(c) of the AIE Regulations. The Department in this case did not provide any relevant information to my Office for review. It appears that as the request was deemed not to be for environmental information, no searches were carried out. Due to this, it is appropriate for me to remit the matter to the Department for further consideration in accordance with the provisions of the AIE Regulations.
36. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the Department’s decision in this case. I direct the Department to undertake a fresh decision-making process in respect of the request.
37. 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.
Julie O’Leary, on behalf of the Commissioner for Environmental Information