Decision
Right To Know CLG and DAA Public Limited Company
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-124239-Z3M2Z4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-124239-Z3M2Z4
Published on
Whether the information requested by the appellant is “environmental information” within the meaning of article 3(1) of the AIE Regulations
20 June 2024
1. On 29 March 2022, the appellant, wrote to DAA, requesting “a record of how much has been spent by the Dublin Airport Authority on air filtration/HEPA filters for use in any of its terminal buildings to combat the spread of Covid-19”. The appellant requested that, “this data…be broken down according to year” and also sought – “a copy of any health and safety assessment, business case, cost benefit analysis associated with the implementation of any measures to improve air quality for the above purposes at the terminal buildings at Dublin Airport”. He also asked DAA to “note the definition of environmental information where it specifies inclusion of information related to human health and safety”.
2. On 25 April 2022, DAA wrote to the appellant indicating that the request for information was to be denied as it did not consider it to “meet the definition of environmental information as laid out in regulation 3(1)(a-f) of the AIE Regulations”.
3. The appellant contacted DAA seeking an Internal Review of its decision on the 26 April 2022.
4. In its Internal Review Decision, issued on 25 May 2022, DAA affirmed its original decision.
5. The appellant submitted an appeal to this Office on 26 May 2022.
6. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and Fingal County Council. In addition, I have 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’).
• the judgments of the Superior Courts in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ);
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB and RTÉ; and
• the decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), and C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. 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.
9. My review in this case is concerned with whether the information requested by the appellant is “environmental information” within the meaning of the AIE Regulations.
10. 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);”.
11. The AIE Regulations transpose the AIE Directive. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive.
12. According to national and EU case law on this matter, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg, paragraph 19), there must be more than a minimal connection with the environment (Glawischnig, paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond, paragraph 58, see also ESB, paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the scope of the definition of environmental information. Otherwise, the scope would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
13. The right of access to environmental information encompasses access to information “on” one or more of the six categories set out at (a) to (f) of the definition. In his decision in RTÉ, Barrett J expressly endorses the approach set out by the Court of Appeal of England and Wales in Henney to determine the “information on” element of the definition of “environmental information” (RTÉ, paragraph 52).
14. It is the appellant’s contention that the information sought is environmental information within the meaning of paragraphs (a), (b), (c), (e) and, in particular, (f) of the definition. It is worth noting that, as part of his request for an internal review, the appellant provided DAA with further detail on why he considered the information sought to be environmental. His arguments may be summarised as follows:
• The information requested relates to air quality in Dublin Airport as per part (a) of the definition of environmental information.
• It relates to aerosol transmission of a health and sometimes life-threatening virus as per part (b) of the definition.
• It relates to measures, including administrative measures likely to affect the above, as per part (c) of the definition.
• It specifically seeks the information defined at part (e) of the definition on the cost-benefit and economic analysis associated with DAA taking measures to curtail the airborne spread of a virus in its terminal buildings.
• It also clearly relates to the "state of human health and safety" as per part (f) of the definition.
15. DAA’s original decision did not provide any basis for its conclusion that the information requested did not meet the definition of “environmental information”. The internal review decision affirmed the original decision. It provided some reasoning for the conclusion, stating that “the request falls short of the required definition of environmental information as the terminal buildings, their design or features are not subject to abiotic factors and in relation to this situation have no impact on the environment”.
16. I will first consider whether the information sought is environmental information within the meaning of paragraph (c) of the definition of environmental information.
17. Paragraph (c) of the definition of “environmental information” refers to 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”. 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, paragraph 63). Information may be “on” one measure or activity, more than one measure or activity or both a measure or activity which forms part of a broader measure (Henney, paragraph 42). In identifying the relevant measure or activity that the information is “on” one may consider the wider context and is not strictly appeals limited to the precise issue with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB, paragraph 43).
18. 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 described the terms “activities or measures” as referring to “decisions on specific activities, such as permits, licences, permissions that may have an effect on the environment”. The Court of Appeal in Minch was of the view that the reference to “plans” and “policies” in article 3(1)(c) is significant, and suggests that the “measure” or “activity” in question must have “graduated from simply being an academic thought experiment into something more definite such as a plan, policy or programme – however tentative, aspirational or conditional such a plan or policy might be – which, either intermediately or mediately, is likely to affect the environment” (paragraph 39). Hogan J went on to explain that this requirement for there to be a plan or something in the nature of a plan, curtails a potentially open ended or indefinite right of access to documents (paragraph 41). If this were not the case, then virtually any information held by or for a public authority referring, either directly or indirectly, to environmental matters would be environmental information. This would run contrary to the CJEU’s judgment in Glawischnig (see paragraphs 21 and 25).
19. The appellant’s request relates to the operation of air filtration/HEPA filters in Dublin Airport terminal buildings and any associated measures to improve air quality in terminal buildings. I am satisfied that the operation of an air filtration system together with any other measures to improve air quality is a measure or activity for the purposes of paragraph 3(c) of the definition of environmental information.
20. The next step is to consider whether this measure or activity affects or is “likely to affect” the elements and factors of the environment (as referred to in paragraph (a) of the definition of environmental information. This condition is satisfied 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.
21. Paragraph (a) of the definition of environmental information makes specific reference to “air” as an element of the environment. The aim of an air filtration system in terminal buildings is to effect the state of the air within the building. In its submissions to this Office, DAA stated that “The Air Quality Standards Regulations are the primary air quality regulations in Ireland and contain provisions for the monitoring and management of ambient air quality only.” It appears from this that DAA considered the reference to air in paragraph (a) to be a reference to outdoor air only. However, the AIE Regulations and AIE Directive contain no such limitation. The Aarhus Convention Implementation Guide makes specific reference to indoor and workplace air quality and suggests that indoor air quality comes within the definition of “air” as included in paragraph 3(1)(a) of the definition of environmental information. When this definition was provided to DAA, it responded “I did not understand the definition included in the Aarhus convention, i.e. “The state of elements of the environment, such as air and atmosphere” as broader and including indoor and workplace air. However, taking a wider definition into account, I contend that the appellants query does not seek information on the air quality or, the state of elements such as air, in the Dublin Airport terminal buildings”.
22. However, the question is not whether the information sought is on air quality, but whether the information sought is information on a measure or activity affecting air quality. Concluding on the above, given that the reference to air in paragraph (a) of the definition of environmental information includes indoor and workplace air, it is clear that the operation of an air filtration system in Dublin Airport is an activity capable of effecting air and therefore the state of the environmental within the meaning of paragraph (c).
23. The next question to consider is whether the information requested by the appellant is information “on” that measure. RTÉ (paragraph 52) endorses the approach set out in Henney. The Court in Henney found that “information is ‘on’ a measure if it is about, relates to or concerns the measure in question” but “simply because a project has some environmental impact, it does not follow that all information concerned with that project must necessarily be environmental information” (see paragraphs 37 and 45).
24. Henney 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 (paragraph 43; see also ESB, paragraph 42). Information that does not advance the purposes of the Aarhus Convention and the AIE Directive may not be “on” the relevant measure or activity (Redmond, paragraph 99). As the Court noted in Henney, the recitals of both the Aarhus Convention and the AIE Directive refer to the requirement that citizens have access to information to provide for a greater awareness of environmental matters, to enable more effective participation by the public in environmental decision-making and to facilitate the free exchange of views with the aim that all of this should lead, ultimately, to a better environment. Those recitals give an indication of how the very broad language of the text of the provisions of the Convention and the Directive may have to be assessed and provide a framework for determining the question of whether information is on a particular measure. Finally, as the High Court noted in ESB, information that is integral to a measure or activity is information “on” it while information that is too remote from the relevant measure or activity does not qualify as environmental information (ESB, paragraphs 38, 40, 41 and 43).
25. The guidance provided by the Courts therefore suggests that there is a sliding scale with information integral to a measure at the one end (in the sense that it is quite definitively information “on” a measure) and information considered too remote from the measure on the other end (in the sense that it is not). The example referred to in Henney noted that a report on PR and advertising strategy might be considered information “on” the Smart Meter Programme (the measure at issue in that case) “because having access to information about how a development is to be promoted will enable more informed participation by the public in the programme”. However, information relating to a public authority’s procurement of canteen services in the department responsible for delivering a road project would likely be considered too remote (paragraph 46). Henney also makes it clear that the definition should be applied purposively having regard to matters such as “the purpose for which the information was produced, how important it was to that purpose, how it is to be used and whether access to it would make the public better informed about, or enable it to participate in, decision-making in a better way” (see paragraph 43).
26. The information sought in this appeal is the amount spent on air filtration together with a copy of any health and safety assessment, business case, cost benefit analysis associated with the implementation of any measures to improve air quality at terminal buildings. This information will give insight into the considerations that influenced DAA in implementing measures to improve air quality within the terminal buildings. The request specifically refers to Covid-19 and the cost of such measures will give the public an insight of the cost burden that was placed on public authorities such as DAA when seeking to minimise the spread of Covid-19 within its environs. I am satisfied that this information is sufficiently related to the relevant activity, namely the operation of an air filtration system in Dublin Airport buildings. I therefore find that the information sought is environmental information within the meaning of paragraph 3(1)(c) of the definition of environmental information.
27. As noted above, DAA made submission arguing that the appellants request was not for information on air quality in and of itself. However, as previously stated, information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond, paragraph 58, see also ESB, paragraph 43).
28. Paragraph (e) of the definition of environmental information refers to “(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c)”. As I have found that the operation of an air filtration system is an activity within the meaning of paragraph (c), it follows that insofar as the request seeks a copy of a cost benefit analysis, this part of the request also comes within the meaning of paragraph (e) of the definition of environmental information.
29. As I have found that all of the information sought is environmental information within the meaning of paragraph (c) and (e) of the definition of environmental information, I am not required to consider whether the information sought comes within any other category.
30. Having carried out a review under article 12(5) of the AIE Regulations, I annul the decision of the DAA. I find that the information sought is environmental information within the meaning of the AIE Regulations. DAA must provide the appellant with a new internal review decision.
31. Finally, I am aware that subsequent to my decisions in OCE-146446-Z8R7J4 and OCE-146437-P0L8D6 in which DAA was also required to provide a new internal review decision to this appellant in respect of a different request, the decision was not provided to the appellant on time. I expect DAA to take notice of the requirements of this decisions and ensure that it is acted upon in a timely manner.
32. 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