Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132739-R5R6N7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132739-R5R6N7
Published on
Whether information requested by the appellant is “environmental information” within the meaning of article 3(1) of the AIE Regulations
1. On 03 October 2022, the appellant requested access to information which informed definitions for the terms ‘Aquatic Zones’ and ‘Relevant Watercourses’ as referenced in training material produced by the Department.
2. The training material (PowerPoint presentation) concerned was used for the provision of training to Ecologists on 27 July 2022 in order to assist with the submission of ecology related documents associated with afforestation applications. The appellant was provided with access to the relevant presentation as part of a separate AIE request made to the Department.
3. The appellant specifically sought the following information, with reference to the contents of slide 6 of the Department’s training material:
(1). Information which informed the need to revise the definition of Aquatic Zones and Relevant Watercourses, and
(2). Information which informed the revised definitions of Aquatic Zone and Relevant Watercourses.
4. The relevant presentation slide states that it is “apparent that existing definitions for Aquatic Zones & Relevant Watercourses require revision, to enhance clarity & consistency in interpretation”. Revised definitions for these terms follow, with elements highlighted to indicate “additional / amended text” and a note stating that “definitions for Aquatic Hotspots and Water Abstraction Points remain unchanged – see Environmental Requirements for Afforestation”.
5. The Department responded to the appellant on 02 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 added that “changes or amendments made to the wording of Departmental training manuals is not regarded as environmental information as outlined in the Regulations”.
6. The appellant immediately sought an internal review of the Department’s decision on 02 November 2022, submitting that “[the Department] have not explained why [it] consider[s] that [his] request is not environmental information”.
7. The Department issued its internal review decision on 28 November 2022. The internal review affirmed the original decision, with reason identical to that relied upon at original decision stage, i.e. that changes or amendments made to the wording of Departmental training manuals “does not meet the definition of environmental information under the Regulations”. The Department also added that the presentation slide in question “indicates that changes were to be made to ‘enhance clarity and consistency in interpretation’”.
8. The appellant submitted an appeal to this Office on 29 November 2022.
9. 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 the submissions made by the appellant and the Department. In addition, I have had regard to:
10. The Department refused access to the requested information on the grounds that it does not constitute “environmental information” within the meaning of the AIE Regulations.
11. Accordingly, this review is concerned with whether the requested information (i.e. information which informed definitions for certain water features pertaining to environmental requirements for afforestation, and information informing the revised definitions) is “environmental information” such that it falls within the scope of the AIE Regulations.
Positions of the Parties
12. The Department’s original decision took the view that the information sought was not environmental information on the basis that “changes or amendments made to the wording of Departmental training manuals” was not environmental information within the meaning of article 3(1) of the AIE Regulations. The appellant made clear in his request for internal review, his opinion that the Department had provided insufficient explanation for this decision. As part of the internal review outcome, the Department responded by advising that “slide 6 [of the presentation] indicates that changes were to be made to ‘enhance clarity and consistency in interpretation’”.
13. The appellant reverted to the relevant Department official on 29 November 2023, appearing to ridicule the Department’ response, before submitting an appeal to this Office that same day.
14. In his appeal, the appellant submits that “forestry licencing is part of the Forestry Programme” and that “an assessment of the potential for impact on water quality forms part of the assessment of every forestry licence application by the Forest Service of [the Department]”.
15. The appellant submits that “how aquatic features like Aquatic Zones and Relevant Watercourses are defined by [the Department] has implications for licence assessment and potential mitigation”. On this basis, he argues that the information sought “falls squarely within” the definition of “environmental Information” under article 3(1)(c) of the Regulations “as it is on a measure (Forestry Programme)” which is both “likely to affect” and “designed to protect... the elements and factors referred to in paragraphs (a) and (b).”
16. The Department provided limited submissions to this Office on 02 February 2023. The Department noted that the internal review outcome advised the appellant of the reason for wording changes. The Department submits that slide 6 of the training material concerned “clearly highlights the amendments being made” such that this does “demonstrate that the added wording provides more clarity to a reader”.
17. On 31 March 2023, this Office wrote to the Department and outlined some key questions or issues regarded as particularly relevant based on an initial examination of the case file, and provided the Department with an opportunity to make further submissions. At this stage, the details of the appellant’s submissions were put to the Department.
18. Regrettably, the Department did not respond to this Office’s request of 31 March 2023, nor did it provide any indication of the extent or type of information that it may hold relevant to the appellant’s AIE request. The Department also has not put forward any arguments in support of its position that the information requested is not “environmental information” within the meaning of the Regulations.
19. 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 this Office, including not providing clarity around the existence of available information for the purposes of this review, is unacceptable and makes it more difficult for this Office to deal with appeals such as this in an efficient manner.
Environmental Information
20. 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) ".
21. The issue of whether or not information is “environmental information” has been covered in many recent court judgments as listed above, and since the decisions in Redmond and RTÉ in particular, I consider that there is very broad but not unlimited scope for determining what constitutes environmental information.
22. The right of access to environmental information that exists includes access to information “on” one or more of the six categories at (a) to (f) of the definition.
23. I am in agreement with the appellant, insofar as it is also my view that paragraph (c) of the definition is the most relevant to this review.
24. The Aarhus Guide notes that the Aarhus Convention expressly includes “administrative measures, environmental agreements, policies, legislation, plans and programmes” when referring to “measures” and “activities” likely to affect the environment in the context of its definition of “environmental information”. Similar wording is used in article 2(1)(c) of the AIE Directive and article 3(1)(c) of the AIE Regulations. The Aarhus Guide notes that the use of these terms suggests that some degree of human action is required. The Guide also describes the terms "activities or measures", as referring to "decisions on specific activities, such as permits, licences, permissions that have or may have an effect on the environment".
25. 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
26. In this case, the appellant’s request concerns information which informed the need to revise the definition of ‘Aquatic Zones’ and ‘Relevant Watercourses’ and information which informed the revised definitions of these terms, as they pertain to environmental requirements for afforestation. Whilst the Department has focused attention in its responses on the revised definitions as cited in “Departmental training manuals”, it is apparent to me that the primary reference point for the terms – ‘Aquatic Zone’ and ‘Relevant Watercourse’, was the Department’s publication – ‘ Environmental Requirements for Afforestation (December 2016) ’, specifically as set out at ‘Table 1 - Water Features requiring water setbacks’.
27. The above document was introduced by way of Department Circular 14/2016 and outlined that “any statutory approval (with or without grant aid) for afforestation is conditional on adherence to the measures set out in these Environmental Requirements for Afforestation, to the conditions of approval, and to the standards and procedures set out in the Forestry Standards Manual.”
28. I am satisfied that the Department’s guideline document on Environmental Requirements for Afforestation is a measure within the meaning of paragraph 3(1)(c).
Whether the measure or activity is likely to affect or designed to protect the environment
29. 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. In this respect, as outlined in the analysis of Hogan J in Minch at paragraph 40 of his judgment, the reference to “likely to affect” the environment should really be understood in the sense of being “capable” of affecting the environment.
30. Table 1 of the Department’s Environmental Requirements for Afforestation provides definitions for four distinct water features namely – ‘Aquatic Zone’, ‘Relevant Watercourse’, ‘Hotspot’ and ‘Water Abstraction Point’. The document explains that different water features are subject to different ‘water setbacks’ ranging from 5 metres up to 25 metres. A ‘water setback’ is defined as “an area of a defined width, positioned adjoining the water features defined in Table 1, and left largely undisturbed during afforestation and throughout the remainder of the rotation, specifically for the protection of water.” It is further noted that water setbacks and setbacks from other environmental features and sensitivities are a key part of forest design.
31. Forestry in Ireland must operate in compliance with national and EU legislation and the requirements of the Department as set out in various publications including Environmental Requirements for Afforestation, introduced in December 2016, to ensure that “the establishment of new woodlands and forests is carried out in a way that is compatible with the protection and enhancement of our environment, including water quality, biodiversity, archaeology and landscape”.
32. I find, therefore, that the Department’s guidelines document on Environmental Requirements for Afforestation is both likely to affect and designed to protect the environment.
Whether the information is on the measure or activity
33. Having found that the relevant measure – the Department’s Environmental Requirements for Afforestation – does have the requisite environmental effect, the next question to consider is whether the information requested by the appellant is information “on” that measure or activity. 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 request concerns the use of revised definitions in material produced by the Department for training ecologists with the submission of ecology related documents associated with afforestation applications, as outlined in Department Circular 16/2022. This Circular was included in a series of Circulars for Forestry Grants and Premium Schemes (2014-2022) which the Department’s website explains are issued regularly to registered foresters and stakeholders to inform them of detailed provisions of forestry strategy and policy.
35. The Department considers that the protection of water quality and aquatic habitats and species is a key requirement for all new afforestation projects. As the appellant has pointed to, how aquatic features like ‘Aquatic Zones’ and ‘Relevant Watercourses’ are defined, constitutes information capable of informing the assessment or thinking on forestry licence applications and potential mitigation measures.
36. Having not received any submissions to the contrary from the Department, I find that information which informed the need to revise these definitions and information informing the revised definitions is information “on” the Department’s Environmental Requirements for Afforestation which, as I have already found above, is a measure within the meaning of category (c) of article 3(1) of the AIE Regulations.
Conclusion
37. 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. On that basis, I am remitting the matter to the Department for further consideration in accordance with the provisions of the AIE Regulations.
38. I note in this case that the Department have adopted a limited view as to the background or origin of the “additional / amended text”, and I would speculate that perhaps it may be a case that the particular revisions are not considered fundamental in nature, in this instance. Nonetheless, revised text was presented and the Department have not addressed what prompted same. One might consider that examples of such information could include feedback or recommendations from stakeholder groups/individuals, or Departmental officials. As such, I would remind the Department that in order to process the request in accordance with the provisions of the AIE Regulations, the Department must take reasonable and adequate steps to search for and identify any information within the scope of the appellant’s request. If no information is retrieved as a result of those searches, the Department should write to the appellant advising him of this and setting out the steps taken by it in conducting those searches and the basis on which it has reached any conclusion that no information within the scope of the request is held by or for it.
39. 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 and direct that the request be remitted to the Department for further consideration in accordance with the provisions of the AIE Regulations.
40. 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