Decision
Right to Know CLG and Transport Infrastructure Ireland (TII)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0046
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0046
Published on
Note: This decision was appealed to the High Court in February 2020 by Right to Know CLG
The Commissioner found that TII was justified in refusing the appellant’s request under article 9(2)(a) of the AIE Regulations. He affirmed TII’s decision accordingly
In a request dated Saturday, 1 September 2018, the appellant requested access to an electronic copy of the following information relating to the operation of the M8 motorway near Fermoy:
1. The index to the PPP contract with DirectRoute (Fermoy) Ltd
2. A copy of the contract itself.
In a decision dated 1 October 2018, TII granted access to the Table of Contents of the PPP contract, but it refused access to a copy of the contract under article 9(2)(a) of the AIE Regulations on the basis that the burden of processing this part of the request would be manifestly unreasonable. TII explained that the contract is extremely voluminous, containing many thousands of records and extending to 68 Clauses and 29 Schedules. TII also noted that the contract included several specification documents that are publically available on its website. TII stated:
“It is, of course, the case that a contract such as the M8 PPP contract that relates to environmental information and which contains environmental information also contains information that is not environmental information. Having regard to the volume of records described above, the complexity of the processes and resources that would be required in order to search the contract for environmental information and fully process your request in relation to such information (which would be likely to require consultation with third parties who might be affected by disclosure) would be an extremely large task, going beyond the requirements of public bodies under the AIE Regulations.”
TII also considered that the public interest served by allowing it to proceed with its important core work without the burden of processing the request for the contract significantly outweighed any public interest that would be served in disclosure of the requested information. However, TII invited the appellant to narrow the scope of the request and offered assistance if required.
On 4 October 2018, the appellant requested an internal review of TII’s decision. On 2 November 2018, TII affirmed its original decision. The appellant appealed to my Office on 22 November 2018.
I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by TII and the appellant. I have also 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); and The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
My review in this case is concerned solely with the question of whether TII was justified in refusing access to the requested PPP contract with DirectRoute (Fermoy) Limited under article 9(2)(a) of the AIE Regulations.
Definition of “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)".
The Directive was adopted to give effect to the first pillar of the Aarhus Convention. It replaced Council Directive 90/313/EEC, the previous AIE directive, in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making.
Article 9(2)(a) of the Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. It is based on Article 4(1)(b) of the Directive and indirectly on Article 3(3)(b) of the Convention, neither of which expressly refers to the volume or range of the information sought, however. The Supreme Court explained in National Asset Management Agency v Commissioner for Environmental Information IESC 51 [2015] (O’Donnell J.) that the provisions of the Regulations "must be understood as implementing the provisions of the Directive 2003/4/EC (and indirectly the [Aarhus] Convention) and . . . ought not to go further (but not fall short of) the terms of that Directive."
The appellant’s position
The appellant argues in essence that volume is an irrelevant consideration in determining whether a request is manifestly unreasonable. It states that a request can only be found to be manifestly unreasonable “if it is fundamentally incompatible with the purpose of the AIE Directive and can be considered to have no value to the public or section of the public”. In this case, the appellant considers that there is a high degree of public interest to be served by disclosure and thus the request “cannot be manifestly unreasonable irrespective of the volume of the information”.
Referring to the English Court of Appeal decision in Department for Business, Energy and Industrial Strategy v. Information Commissioner and Alex Henney [2017]EWCA Civ 844 (Henney), the appellant also argues that there is no need to separate the alleged non-environmental information from environmental information in this case, because applying the purposive approach, the entirety of the requested information is environmental information. It notes that, according to TII’s website, the Concession Company, DirectRoute, is required to undertake the following tasks: design, build, maintain, operate, re-invest, and finance. It also notes that construction of motorways is an activity mentioned in Annex 1 of the Aarhus Convention and Annex 1 of the EIA Directive as activities/projects which require environmental impact assessments. The appellant therefore considers that the design and build aspects of the PPP Contract fall squarely within the scope of the Aarhus Convention and category (c) of the environmental information definition. It also considers that the maintenance, operation and re-investment obligations likewise involve activities affecting or likely to affect the environment and therefore the contractual arrangements for those activities qualify as category (c) environmental information. Insofar as the PPP Contract itself or any aspect of it, such as the general boilerplate or provisions relating to finance, “could be considered not intrinsically to affect the environment”, then this information, in the appellant’s view, is still “information on” the measures and activities which do affect or likely affect the elements and factors of the environment.
The appellant acknowledges that there are limits to the definition of environmental information. It states:
“The line is to be drawn by reference to the general principle that the AIE Regulations, AIE Directive and the Aarhus Convention are to be interpreted purposively having regard to the particular facts and context. Information will not be information on a measure or activity if access to it is not consistent with or does not advance the purpose of the AIE Regulations, AIE Directive and/or Aarhus Convention. While the definition is broad the limitation to the interpretation of ‘information on’ prevents an expansive reading that sweeps in information which on no reasonable construction can be said to fall within the terms of the statutory definition.”
However, the appellant considers that “it is reasonable and consistent with the purpose of the AIE Directive to consider the entire PPP Contract to fall within the terms of the definition of environmental information since access to it allows the public to be better informed and contribute to environmental decision making”. The appellant adds: “It also allows the public to better understand the financing of this public infrastructure project and the trade-offs involved. In general, it enhances accountability and transparency in respect of outsourcing of the design, build and operation of a large infrastructure project by the State.” It also states that the contract is a “single record” and that “any separation is an artificial exercise”. Alternatively, the appellant argues that any non-environmental information can be easily separated from the environmental information.
In addition, the appellant refers to the findings of the Aarhus Convention Compliance Committee (ACCC) on communication ACCC/C/2004/03 and the Aarhus Guide in support of its claim that environmental information should be provided regardless of volume. The appellant also suggests, again in reference to English case law, Dransfield and Craven v The Information Commissioner & Anor EWCA Civ 454 [2015] (Dransfield and Craven), that the same high standard for finding vexatiousness should apply in determining whether a request is manifestly unreasonable. The appellant states: “If there is some public interest in access the request cannot be manifestly unreasonable.” In the appellant’s view, there is a very strong public interest in accessing the PPP Contract given that it relates to the environment and motorways.
Lastly, the appellant contends that I do not have the power to remit a case to a public authority. In its view, if I find that a refusal is not justified, I must require the requested environmental information to be made available unless such a requirement would serve no purpose consistent with the fundamental right of access and the purpose of the AIE Directive.
TTI’s position
In its submissions, TII provides background information about the M8 Rathcormac-Fermoy Bypass PPP scheme and, like the appellant, it notes that the Concession Company, DirectRoute, is required under the Project Agreement to undertake the following tasks: design, build, maintain, operate, re-invest, and finance. TII emphasises that the Project Agreement is extremely voluminous and contains many thousands of records, extending to 68 Clauses and 29 Schedules (incorporating 85 Parts, 51 Annexes and 72 Appendices) and includes 180 Drawings. It says that the Schedules in turn reference significant numbers of additional documents and that many of these documents are extensive. In addition, it refers to the numerous TII specification documents, which in turn contain multiple volumes and documents, that are also part of the Project Agreement but which are publicly available on its website.
In relation to the resources to the resources that would be required to process the request, TII states:
“Having regard to the foregoing, you will appreciate that it would not be possible to indicate with any degree of accuracy the actual volume of records that would have to be examined in order to process this request. As a broad estimate, however, it might be reasonably assumed that such an exercise would require a dedicated resource many weeks in order to process the request. TII does not have the resources that would be required in order to undertake such an exercise and, in any event, even if TII had the necessary resources available (which it does not), the undertaking of such an exercise would cause a wholly unreasonable burden on the work of TII that would go beyond the requirements placed on public bodies under the Regulations.
It should also be noted that the processing of this request would also require the undertaking of an extensive third party consultation process, given the obvious commercial sensitivity of aspects of the Project Agreement. This would not only serve to increase the burden of processing the request but would also result in significant claims from the PPP Company for the time that would be required for the Company to familiarise themselves with the AIE Regulations, review all of the documentation that comprises the Project Agreement and to determine the relevance of same in the context of the specific AIE request.”
TII also gives examples of the type of information contained in the Project Agreement that “would appear to have no explicit reference to or inclusion of environmental information but would, nevertheless, require detailed scrutiny, and by an individual competent to do so, to confirm this”. It states: “Accordingly, having regard to the volume of records described above, the complexity of the processes and resources that would be required in order to identify non-environmental information and other information such as personal information, commercially sensitive information, etc would be an an extremely onerous task, going beyond the requirements of public bodies under the AIE Regulations.”
TII says that the processing of the request would in the circumstances place manifestly unreasonable demands on its resources. It also remains strongly of the view that the processing of the request is “not of such public interest as to justify provision of the information, notwithstanding its voluminous nature, because:
a) the time and cost of processing the request would, among other things, materially distract TII from its statutory duty to secure a safe and efficient network of national roads, and
b) the time and cost to third parties, such as the PPP Company, would be excessive, unreasonable and expose TII to a claim for compensation for such work.”
Conclusions
The appellant does not dispute that the contract is long and voluminous and indeed it has been provided with a copy of the index confirming that the contract includes 68 Clauses and 29 Schedules. The appellant is also aware of the information about the project that is available on TII’s website and the scale of the tasks that the Concession Company is requird to undertake under the Contract, which was awarded in June 2004. Rather, the appellant disputes that volume is a basis for finding that a request is manifestly unreasonable. The appellant also disputes that it is necessary to examine the contract in order to separate the environmental information from the non-environmental information, since it considers that the contract as a whole is environmental information.
My approach to article 9(2)(a)
In Case CEI/17/0019 Right to Know LG and Transport Infrastructure Ireland, involving a request by the same appellant to the PPP Contract relating to the M1 motorway between Gormanstown and Ballymascanlan, I noted that a contract must be considered in terms of the environmental information which it contains. I referred to my previous decision in Case/16/0016 (Thomas Freeman and ESB Networks) in which I found that a contract that related to environmental information and which contained environmental information also contained information that was not environmental information. Having regard to the Aarhus Guide, I also noted that it is not volume or complexity alone which might make a request manifestly unreasonable but rather the recognition of the burden of fully processing such a request. I concluded that article 9(2)(a) applied:
“[E]ven without taking account of the material that is already publicly available and even if TII’s time estimate is over-stated, the task of searching the complete contract for environmental information and fully processing the request in relation to such information (which would be likely to require consultation with third parties who might be affected by disclosure) would be a very large task, going beyond what the AIE scheme requires of public authorities.”
Other decisions in which this Office has addressed the question of volume or complexity in relation to article 9(2)(a) include: CEI/17/0047 (Ms AB & the Department of Housing, Planning, Community and Local Government) (involving a request for information relating to a foreshore lease application and finding that the time and other resources that would be required to provide the appellant with all relevant environmental information would result in a disproportionate diversion of resources from the Department’s core work); Case CEI/14/0009 Ms Mary Horan et al. and ESB Networks (finding that a request for access to all information relating to the entire cost of the Sranagh Station Project was manifestly unreasonable given the sheer scale of the request); Case CEI/13/0010 Mr Lar McKenna and ESB Networks (accepting that a request seeking access to records relating to power generation schemes was for a voluminous amount of information that could not be processed without imposing an unreasonable burden on staff resources); Case CEI/09/0014 Mr. Tony Lowes, Friends of the Irish Environment and the Office of the Attorney General ] (accepting that processing a request for access to all records relating to two cases brought against Ireland by the European Commission would impose an unreasonable burden on staff resources).
Volume is a relevant factor
I find no reason to depart from the approach that my Office has taken in relation to article 9(2)(a) in the past. I recognise that in its report on Communication ACCC/C/2004/03 adopted on 18 February 20015, the ACCC stated at paragraph 33:
“Finally, information within the scope of article 4 should be provided regardless of its volume. In cases where the volume is large, the public authority has several practical options: it can provide such information in electronic form or inform the applicant of the place where such information can be examined and facilitate such examination, or indicate the charge for supplying such information, in accordance with article 4, paragraph 8, of the Convention.”
However, the ACCC report involved information requested in the context of the right to public participation under article 6 of the Convention in relation to a “decision-making process on State ‘environmental expertisa’ linked with the technical and economic evaluation of the proposed project” to construct a navigation canal. It is not clear from the report what exactly the requested information consisted of, but it apparently related to materials developed in the course of an environmental impact assessment and, in particular, a copy of the conclusions of the State Environmental Expertisa. The report does not address the considerations that may be relevant in determining whether any of the exemptions specified in article 4, paragraphs 3 and 4, may apply.
I accept that the volume of the information requested is not itself a determinative factor in relation to the question of whether a request is manifestly unreasonable, but it is relevant in determining whether the processing of the request would result in an unreasonable interference with the work of the public authority concerned. As I stated in Case CEI/17/0047: “While article 9(2)(a) refers to a request being manifestly unreasonable having regard to the volume or range of information sought, the volume or range of information requested alone is not enough to refuse a request. Rather, the volume or range is a consideration to be taken into account when determining if a request is manifestly unreasonable where, for example, processing the request places an unreasonable administrative burden on the relevant public authority, diverting it away from its core work.” I find support for my approach in the Explanatory Memorandum for the Proposal for a Directive of the European Parliament and of the Council on public access to environmental information 52000PC0502 Official Journal C 337 E, 28/11/2000 P/ 0156-0162:
“Public authorities should also be entitled to refuse access to environmental information when requests are manifestly unreasonable or formulated in too general a manner. Manifestly unreasonable requests would include those, variously described in national legal systems as vexatious or amounting to an abus de droit. Moreover, compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Authorities should be able to refuse access in such cases in order to ensure their proper functioning.”
I also note that in a more recent report adopted by the ACCC on 18 June 2017, on a request for advice by Belarus, ACCC/A/2014/1 the ACCC itself expressly acknowledged at paragraph 28 that volume and complexity are among the relevant factors to consider in relation to whether or not a request is manifestly unreasonable:
“The Committee emphasizes that whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated. The Committee accordingly recommends to the Party concerned that it inform its authorities that, when handling information requests within the scope of article 4 of the Convention, they are not permitted to require applicants to give a reason for their request.”
The UK approach
In relation to the English case law referred to by the appellant, I note that I am not bound by the judgments of foreign courts and tribunals but that they do not support the position being urged by the appellant in this case in any event. The Dransfield and Craven judgment is concerned largely with the question of vexatiousness in the context of the UK Freedom of Information Act (FOIA) and the application of the FOIA test for refusal under the relevant exemption provision, section 14, to the Environmental Information Regulations (EIR). However, a separate costs of compliance rule applies under section 12 of the UK’s FOIA in determining whether complying with a request would be excessively burdensome. In the Craven case, the Upper Tribunal had found that the costs of compliance could be taken into account under both the FOIA and EIR regimes in determining whether a request is manifestly unreasonable, though the EIR exception “could not be maintained if the authority considered that the public interest in disclosure outweighed this exception”. In considering the issue, the Court of Appeal agreed with the Upper Tribunal’s conclusions, but it added at paragraph 84 of its judgment:
“I would add the point, not made by the UT [Upper Tribunal], that the Aarhus Convention: an Implementation Guide referred to in para. 54, states that ‘the volume and complexity alone could not justify withholding information on the ground that the request is “manifestly unreasonable.”’ There is no equivalent guidance in relation to section 14. This may mean that a higher hurdle has to be passed before a decision maker can conclude that a request should be rejected on the grounds of the costs of compliance under the EIR than under FOIA. That in turn may depend on the precise status of the Implementation Guide. These points were not fully argued and so I express no concluded opinion on them.”
In other words, the Court is suggesting, but without deciding, that the costs of compliance rule that applies under FOIA might not, of itself, be a sufficient basis for finding that a request is manifestly unreasonable under the environmental information regulations. I do not believe that the Court is suggesting by any means that volume can never be a basis for finding a request to be manifestly unreasonable or that the manifestly unreasonable refusal ground can never apply if there is “some public interest” in accessing the information. Indeed, in a recent case, Reference FER0824381 31 October 2019, the UK Information Commissioner stated that a request can be refused as manifestly unreasonable under EIR “either as it is considered vexatious, or on the basis of the burden that it would cause to the public authority”. Moreover, in another recent case, Reference FS50821957 22 July 2019, the UK Information Commissioner found that a request for site audit reports about a cycle lane scheme was manifestly unreasonable under the EIR despite accepting that “matters relating to road safety are of substantial public interest”. Both decisions are available at ico.org.uk.
Processing the request in this case
In this case, the Table of Contents for the PPP Contract at issue and TII’s decision indicate that the request is very similar in nature and scale to the request concerned in Case CEI/17/0019. It is apparent from the decision itself that the claim for refusal under article 9(2)(a) is not merely based on volume in the sense of the effort to retrieve the information and make it available through electronic means or otherwise but rather the resources that would be required in first searching the Contract for environmental information and then in fully processing the request, including any required third party consultation, insofar as the Contract contains environmental information. As in Case CEI/17/0019, I accept that this would be a very large task, going beyond what the AIE scheme requires of public authorities.
The question of ‘environmental information’
In Case C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany, the CJEU clarified that "the right of access guaranteed by Directive 2003/4 only applies to the extent that the information requested satisfies the requirements for public access laid down by that directive, which requires inter alia that the information is 'environmental information' within the meaning of Article 2(1) of the directive”. I take this to mean that the AIE regime only applies with respect to "environmental information" as that term is defined and therefore there are limits to the scope of the AIE regime. The case law of the CJEU and the Irish Courts also reflects that, while the concept of “environmental information” is broad, a mere connection or link to the environment is not sufficient to bring information within one of the six categories set out at article 3(1) of the definition, as required. Thus, while I accept that the construction of a motorway is an activity that affects or is likely to affect the environment, I do not agree with the appellant that it is possible to find that all of the information contained in the extensive PPP Contract at issue is environmental information for the purposes of the AIE Regulations without an examination of its contents. As the English Court of Appeal in Henney acknowledged, “’simply because a project has some environmental impact’, it does not follow that ‘all information concerned with that project must necessarily be environmental information’”.
Having regard to the purposive approach reinforces my view of the matter. As the Court in Henney also observed, “a purposive approach can be used to interpret a provision more narrowly than its very broad literal meaning”. In other words, reference to the legislative purpose can result in the scope of a provision being effectively “read down”. Given the wide array of matters covered by the Contract, as described in the Table of Contents, I do not see how it can be determined that all parts of the Contract qualify as “information on” a measure or activity under article 3(1)(c) in a manner that is consistent with the purpose of the Directive without an examination of the information contained in each part.
For example, as the appellant itself acknowledges, the Contract covers requirements relating to re-investment and finance. The Explanatory Memorandum referred to above states in relation to the environmental information definition:
“The definition contains a specific mention of cost-benefit and other economic analysis used within the framework of activities and measures affecting or likely to affect the environment. This will remove uncertainties identified during the review process as to how far the current definition applies to economic and financial information.”
This statement suggests that economic and financial information was not necessarily intended to be captured within the scope of the Directive unless it fell within this subparagraph (e) of the definition. The ACCC in Communication ACCC/C/2007/21 European Union did not rule out the possibility that a financing agreement may qualify as environmental information, but stated that it must be “determined on a case-by-case basis”. As an example of when financing agreements "may sometimes" amount to a measure affecting or likely to affect the elements of the environment, the Committee referred to a financing agreement dealing with "specific measures concerning the environment, such as the protection of a natural site". Thus, I do not consider that it could possibly be consistent with the purpose of either the Directive or the Convention to find that economic or financial information in a PPP Contract is environmental information without consideration of the specific terms of the information concerned to determine whether access may in fact facilitate public participation in environmental decision-making.
Processing the information within remit
Moreover, the question of environmental information is not the end of the matter. The third party reference in TII’s decision was made in relation to the work involved in “fully process[ing]” the request insofar as it found that the Contract does consist of environmental information. While it remains unclear how much environmental information is involved, it is apparent that the Company is one third party who would be affected by the request and the Table of Contents indicates that there could be others. It is also apparent from the Table of Contents that, given the wide range of information involved, fully processing the request would likely require detailed analysis in light of other refusal grounds provided for under the Regulations, such as article 9(1)(c) (commercial or industrial confidentiality) and article 9(1)(d) (intellectual property rights).
I accept that a claim for refusal under article 9(2)(a) on the basis of volume alone would not be justified if it appeared that the request could reasonably be expected to be processed without an undue interference with the other work of the authority by merely extending the deadline for a decision under article 7(2)(b) of the Regulations. However, article 7(2)(b) only allows for an extension to a date not later than 2 months from the date on which the request was received. I accept that the request in this case could not have been processed within a 2-month period without a disproportionate and unreasonable diversion of resources.
Article 10(3)
As noted above, the Contract was awarded in June 2004. It is thus over 15 years old. The appellant did not avail of the opportunity to seek assistance in narrowing the request and identifying the particular environmental information of interest to it despite being provided with a copy of the Table of Contents. The appellant is also aware that TII’s website contains a significant amount of information about the M8 Rathcormac/Fermoy PPP Scheme. In addition, I note that TII has submitted completion reports on the PPP schemes, dated 25 July 2018, to the Committee of Public Accounts that are available on the Oireachtas Open Data website, data.oireachtas.ie (see link copied here ). In the circumstances, it seems that the public interest in openness and transparency has been served to some extent whereas it is entirely unclear to what extent access to the requested information would contribute to greater awareness of environmental matters or facilitate more effective participation in environmental decision-making. Applying article 10(3) of the Regulations, I agree with TII that the public interest served by disclosure in this case does not outweigh the interests served by refusal. Accordingly, I find that TII was justified in refusing the appellant’s request on the basis that article 9(2)(a) applies.
Having carried out a review under article 12(5) of the AIE Regulations, I affirm TII’s decision to refuse the appellant’s request under article 9(2)(a) of the 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