Decision
Mr. V and Wexford County Council (the Council)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0024
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/17/0024
Published on
Whether the Council was justified in refusing a request for environmental information held by and for the Council on its noise monitoring survey of wind farms.
In early 2016, on foot of a number of complaints about noise nuisance from wind farms, the Council commissioned RPS Group Plc (RPS) to carry out what it described as an in-depth, extensive noise survey of the sound emitting from adjacent wind farms and their wind turbines.
On 15 February 2017, the appellant made the following request to the Council under the AIE Regulations.
“All is in regard to RPS Group engagement with Wexford CC for its noise monitoring program of wind farms.
The environmental information captured during the program of work for Wexford CC in regard to the noise monitoring of Windfarms. This should include inter alia
1) A schedule of all environmental information held as per 5(1)(d) (although AIE 1/17 is under internal review on this matter)
2) A map showing locations environmental information was collected from to include details of equipment deployed at those sites along with dates and times of deployment
3) All communications between Wexford CC and RPS Group inter alia – emails, documents , minutes, phone calls, text messages, WhatsApp messages
4) A schedule of all visits made to the monitoring sites and surrounding area and to include inter alia copies of all observations and measurements made during those visits
5) I appreciate the following could be large files hence I request “access to” rather than the “supply of” taking into account the pre‐amble of the AIE directive
a. Access to the sound meter data such as L90, L10, Leaq etc. in a spread sheet format
b. Access to the same sound meter data in its original exported format for loading into the manufactures analysis software
c. Access to audio files collected
d. Access to wind speed data
e. Access to SCADA data collected from the wind farms
f. Access to any other measurement or observational data collected”
Both the initial decision on 13 April 2017 and the internal review decision on 1 June 2017 were issued well after the one month period for a decision specified in the Regulations and therefore were both deemed refusals. Article 10(7) of the Regulations provides that where a decision is not notified to the applicant within the relevant period specified in article 7, a decision refusing the request shall be deemed to have been made by the public authority concerned on the date of expiry of such period. Here, the Council’s failure regarding the timelines at both decision and internal review is not satisfactory.
In both its late “decisions”, the Council informed the appellant that the request concerned material in the course of completion as the noise monitoring was underway and therefore article 9(2)(c) applied. Article 9(2)(c) provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. The Council also stated that item three had revealed an enormous amount of records and that a reduction in scope would be required.
On 29 May 2017, the appellant appealed to my Office.
In July 2017 the Council published on its website the reports completed by RPS and provided the appellant with raw acoustic and audio data utilised in the analysis of these reports. This was only a subset of the data and information requested and the appellant remained dissatisfied.
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 the appellant, the Council and RPS. I also 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).
This was a lengthy and complex case during which circumstances changed and some information was made available to the appellant. The applicant made a large number of submissions, requests for clarification and observations as to how my Office ought to handle the review. I have considered all of them and I note that my Investigator responded to the various queries where possible. I do not intend to discuss all of the arguments put forward in the submissions but I have had regard to them where relevant.
I have to say here that some of what the applicant appears to be requiring me to do in the context of enforcement and other areas would be ultra vires. My role as Commissioner is specified in article 12 of the AIE Regulations i.e. I have the power to review decisions of public authorities where requests for access to environmental information are refused. While the appellant and the Council in this case have been involved in extensive contact, including AIE and FOI requests, around the subject matter at issue, my jurisdiction in this appeal allows me only to affirm, vary or annul the particular decision arising from the request made and where appropriate to require the Council to make the environmental information available to the applicant. Any enforcement function that I have is confined to that set out in article 12(8).
Preliminary matters:
Does RPS hold environmental information for the Council?
Before making the AIE request to the Council, the appellant made a similar request directly to RPS. In my decision in CEI/17/0015 (available on www.ocei.ie ) I found that RPS was not a public authority as defined under article 3 of the Regulations. I examined the contract for the noise monitoring programme between the Council and RPS and it confirms that all intellectual property title rests with the Council. Even though RPS is not a public authority, I am satisifed that any environmental information the subject of this request held by RPS or by a subcontractor in relation to the noise monitoring programme is held for the Council.
What information does the appellant now have?
The following information has been released to the appellant:
Information coming within item 2 was made available by the Council to the appellant in July 2017.
Information under item 4 was released by the Council to the appellant during the course of this review. This was ‘Noise Survey Field Notes’ and information collected by a sub-contractor who deployed monitoring equipment, carried out weekly inspections and downloaded data from the units for transfer to RPS.
Items 5a & 5b were made available to the appellant in July 2017.
A subset of the audio data requested under item 5c was also provided to the appellant in July 2017.
For clarity, my Office provided the appellant with a list detailing the items of his request that are no longer within the scope of this review.
Scope of Review
Item 1 of the request refers to “a schedule of all environmental information held as per 5(1)(d)”. Article 5(1)(d) of the AIE Regulations provides that a public authority shall maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found. The Council stated that no such schedule existed on 15 February 2017. This is a provision under the general duties of a public authority under the AIE Regulations and enforcing compliance with it is not within my remit.
My review is concerned with the remaining withheld environmental information requested and held by or for the Council.
Information coming within items 3 and 5f of the request is being withheld. The appellant also disputes the Council’s account of what is now held by or for it under items 4 and 5 of his request.
Therefore, my review is concerned with:
Whether the Council is justified in refusing to disclose any environmental information held under items 3 and 5f of the request.
Whether environmental information is withheld by the Council and/or RPS under item 4 and items 5c, 5d and 5e of the request.
Analysis and Findings
I will deal first with whether the Council is justified in its refusal to disclose environmental information coming within item 5f.
Item 5f. Access to any other measurement or observational data collected
The Council stated in a submission on 5 April 2018 that any other information collected was presented in the final report and therefore it did not hold any further information under this heading. However, RPS stated that it still holds noise logs as referred to in section 3.9 of the reports. It explained that, in the logs, private residents made personal observations of the characteristics of the noise they could hear, rated it on a scale from 1 to 10 and noted the time and date. It said that within the monitoring period, approximately 300 individual records were collected. It added that this information was provided in confidence on the basis of verbal agreement. It went on to state that the Council, on whose behalf the noise logs were received through RPS, assured residents that the noise logs would not be released or published in any way. The Council submitted that the logs contain personal information about households, their habits, sleep patterns etc. According to the Council, before releasing this information, permission would need to be sought and received from each of the householders and then the logs would need to be prepared for release if individual permissions were received.
During the course of my review copies of the noise logs completed and submitted by the appellant were released to him.
The appellant argued that article 8 (a)(ii) applies as the logs were provided voluntarily by the householders and therefore the Council must, under article 7(11) make all reasonable efforts to contact the householders to seek consent or otherwise to release of the information. However, while I have noted the appellant’s view, I consider that article 8(a)(i) is the most relevant provision to consider in relation to the noise logs.
Article 8(a)(i)
Article 8(a)(i) provides for the refusal of environmental information where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law.
Section 37(1) of the FOI Act 2014, subject to other provisions of section 37, provides for the mandatory refusal of access to a record containing personal information.
"Personal information" is defined at section 2 of the FOI Act 2014 as
"information about an identifiable individual that -
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential" ...
Section 2 also lists 14 non-exhaustive examples of what must be considered to be personal information.
I am satisfied that the information at issue constitutes personal information under the FOI Act's definition, and I therefore accept it as personal information for the purpose of this review. I consider that disclosure of the noise logs relating to individuals (i.e. natural persons) would adversely affect the confidentiality of personal information relating to natural persons as disclosure under the AIE Regulations would be akin to disclosure to the world at large. I am further satisfied that confidentiality of this information is protected by EU and national data protection law.
I find that, therefore, article 8(a)(i) applies.
Article 10(1)
Article 10(1) states: "Notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment".
I accept that at least some of the request concerns information on noise which is generally considered to be an emission. However, in order for article 10(1) to effectively disapply article 8(a)(i), I would have to be satisfied that the information in the withheld noise logs relates in a sufficiently direct manner to emissions into the environment ( Case T-545/11 Stichting Greenpeace Nederland-v-Pesticide Action Network Europe ).
Some of the entries in the noise logs kept by residents do relate to the "hum" perceived by individuals to be audible from turbines. Nonetheless, it would not be feasible and indeed could be misleading, to separate this out from other parts of the entries which identify private individuals and their perceptions of e.g. weather, animal and traffic noise along with the domestic routines of their households.
I consider that, in the circumstances of this case, to conclude that this part of the request engages article 10(1) would lead to a disproportionate interference with the privacy rights of the third parties and the protection of their personal information under article 8(1)(a). I have no reason to believe that the "emissions rule" was intended to set aside rights to the protection of personal data as enshrined in European Law. I say more about privacy rights and transparency in my discussion of the public interest below.
This interpretation is supported by the Advocate General’s Opinion in a case concerning Article 4(2) of the AIE Directive. In C-524/09 Ville de Lyon , Advocate General Kokott found that information on the sale of emission allowances was environmental information. However he also found that it was doubtful that "restriction of the exceptions to the right of access under the fourth sentence of Article 4(2) of the Environmental Information Directive is intended to encompass indirect information on emissions in exactly the same way as the definition of environmental information. The two provisions have different functions which preclude a uniform interpretation". He went on to say that if the exception regarding confidentiality of commercial or industrial information could not apply to information indirectly linked with emissions then the scope of that exception would be severely restricted as most environmental information can be linked indirectly with emissions.
The Public Interest – article 10(3)
Section 37 of the FOI Act is subject to a public interest balancing test at section 37(5.
Further, article 10(3) provides that a public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) provides that the grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. I take article 10(4) to mean, in line with the Minister's Guidance, that there is generally a presumption in favour of the release of environmental information. However, this is subject to the strong protection afforded to the right to privacy under European and Irish law.
The right to privacy and the right to protection of personal data are fundamental rights under articles 7 and 8 of the Charter of Fundamental Rights of the European Union (the Charter). The right to privacy has also been recognised by the Irish courts as an unenumerated right under article 40.3 of the Constitution of Ireland. I consider that there is a very significant public interest in upholding individuals’ right to privacy and right to protection of personal data.
While neither the right to privacy nor the right to protection of personal data is absolute, I consider that privacy and data protection rights should be set aside only where the public interest served by granting the request is sufficiently strong to outweigh the public interest in protecting privacy and person data. I accept that there is a public interest in the transparency of how the noise monitoring programme was carried out and by extension, the information that informed the contents of the reports. However, this must be weighed against the very significant public interest in protecting the privacy and data protection rights of individuals. In my recent decision in CEI/18/0012 (available on www.ocei.ie ), I cited the Joined Cases C-92/09 and C-93/09 Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen (Schecke), where the CJEU stated that "[n]o automatic priority can be conferred on the objective of transparency over the right to protection of personal data . . . even if important economic interests are at stake".
In addition to this there is a public interest in not deterring members of the public from participating and engaging with the Council in any future noise monitoring or similar type programmes by releasing personal data in this case. It seems to me that the public interest in openness and transparency on how the Council carried out its obligations is served to a large extent by the information already released to the appellant and available to the public. The appellant is aware of the survey format from his own involvement in it. In the circumstances of this case, I find that the public interest in favour of maintaining the exception in article 8(a)(i) outweighs the public interest in disclosing the personal data of individuals.
Article 10(5) – Separation of Environmental Information
Having regard to the nature of the third parties’ information and how it was collected, I conclude that it is not feasible to provide access to records, even with identifiable personal information redacted, without leading to the type of adverse effects discussed above. I therefore find that article 10(5) does not apply.
In summary, I find that article 8(a)(i) applies to the information sought under item 5f of the request.
Item 3. All communications between the Council and RPS inter alia – emails, documents, minutes, phone calls, text messages, WhatsApp messages
In communication with both the appellant and my Office, the Council stated that “phone calls, text messages and WhatsApp messages are not recorded”. While it can be easily understood that telephone conversations are generally not recorded, WhatsApp and text messages are recorded on users’ mobile handsets. My investigator therefore sought clarity on this from the Council. The Council stated that it did not use WhatsApp as a means of communication with RPS. It did, however, confirm that it used text and provided my Office with copies of the text messages. I examined the text messages between RPS and the Council, of which there were over 70. I consider that for the most part they relate to general administration including arranging times for phone calls, access to sites for recording and contact with households.
In relation to the remainder of items requested under this item, the Council told the appellant that a search for emails, documents and minutes has revealed an enormous amount of records. It suggested a reduction in scope, pointing out that some of the records may be confidential and may or may not contain environmental information. In a submission to my Office, it stated that there were approximately 300 emails alone found in relation to the request and that the process of scheduling, reading, redacting and photocopying such a large number of emails would take approximately one and a half weeks dedicated work. I take it that other documents which are neither texts not emails may also exist so this does not cover other information that may be discovered as part of a full search under item 3. I accept the Council’s account that there is a very large volume of information covered by item 3 given the size and scale of the monitoring programme.
Article 9(2)(a)
Article 9(2)(a) 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. In considering whether article 9(2)(a) applies, I need to consider whether, given the volume of information sought and the work required to deliver it, it is proportionate to the request. I understand that the purpose of article 9(2)(a) is to ensure that meeting AIE requests does not unreasonably interfere with the operations of public authorities.
The Aarhus Implementation Guide says at page 84 that:
“Although the Convention does not give direct guidance on how to define “manifestly unreasonable”, it is clear that it must be more than just the volume and complexity of the information requested. Under article 4, paragraph 2, the volume and complexity of an information request may justify an extension of the one-month time limit to two months. This implies that volume and complexity alone do not make a request manifestly unreasonable.”
The Guide further says that:
"If a Party decides to provide for this exception it will need to define 'manifestly unreasonable' so as to assist public authorities in determining when a request is so unreasonable that it may be refused under this exception, and protect the public's interest that the test will not be applied arbitrarily."
As my predecessor commented in her decision in case CEI/12/0005 (available on www.ocei.ie ):
"The [Aarhus] Guide is a very useful reference tool, but it does not purport to be legally binding, a position which was confirmed by the European Court of Justice in Solvay and Others, Case C-182/10 (16 Feb. 2012). The lack of clarity in a number of the provisions of the Regulations is just one of the many practical difficulties my Office has encountered in dealing with the AIE regime."
I do not find that article 9(2)(a) is too ambiguous to apply in a fair and equitable manner. While it is not my purpose here to describe the full range of circumstances in which article 9(2)(a) may apply, I consider that the term "manifestly unreasonable" is sufficiently clear to denote, without further explanation, a request of broad range which covers a large number of records the examination of which would include the identification of environmental information and possible consultation with third parties.
I note that the appellant was willing to accept the information requested under item 3 in electronic format. The Council's concerns in the current case are not confined to the cost of supplying information which might be overcome to some degree by the provision of the information in electronic form. It has concerns about the work time which would have to be dedicated by members of staff to searching for all records of communication, identifying any environmental information in them and consulting with third parties as required. I have considered the detailed submission made by the appellant and the arguments put forward as to why his request is not manifestly unreasonable. However, it is clear to me that the request in its current “general” form requires a disproportionate effort on behalf of the Council and I find that article 9(2)(a) applies given the volume and amount of resources required by the Council before the environmental information held could be considered for release.
The Public Interest – article 10(3)
As I have discussed above in the context of article 8(a)(i), article 10(3) of the AIE Regulations obliges a public authority to weigh the public interest served by disclosure against the interest served by refusal in every case. For this reason, although a public authority might form the view that a request is manifestly unreasonable, it would not be justified in refusing the request for that reason if the public interest in disclosure outweighed the interest served by refusal. In other words, a sufficiently strong public interest in disclosure can mean that a request which appeared at first to be unreasonable might be found, after all of the circumstances are considered, to be reasonable.
As above, in considering the public interest served by disclosure it is important to have regard to the purpose of the right of access as reflected in recital (1) of the Preamble to Directive 2003/4/EC, which states: "Increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment." The appellant provided a number of arguments that he believed added weight to the public interest in release of the information held. In summary, the appellant argued that the noise monitoring programme was flawed as:
there was a massive over spend on the noise monitoring project and the project was extended by five months;
standardised procedures outlined in the original tender document were not used during the process and the project failed to fulfil what was outlined to local residents;
data collected was deleted and he has concerns on the data used in the final reports;
Environmental Protection Agency guidelines were not followed.
The Council, however, stood over the robustness of the noise survey and said that both the noise collection and its subsequent analysis followed international best practice.
The appellant also argued that release of the information would improve accountability and participation by enhancing scrutiny of decision making process on the noise monitoring programme and providing assurance that the Council as planning authority is carrying out its duty under planning law. He stated that item 3 of his request may contain information on how the noise levels were investigated and compared to the World Health Organisation recommended noise levels. He argued that the data set will almost certainly contain information on emissions (noise as an emission) for which he claims no public interest test is required.
In considering the public interest, I have to consider what is proportionate in this case. I have to consider what information has already been released to the appellant and the information that was deleted. I also consider the resources, including those of my Office and the time the appellant himself has spent on this appeal. Requiring the Council to process item 3 of the request would be requiring it to divert its resources from its other functions. This is difficult to justify, even if the Council was only required to catalogue the information it holds under item 3. It is clear to that the appellant has more information available to him now than when he made the AIE request and is now in a position to make a more specific AIE request should he choose to do so.
In the circumstances of this case, I find that the public interest favours maintaining the exception in article 9(2)(a).
Item 4 and items 5c, 5d and 5e
I now consider whether access to further environmental information is being effectively refused by the Council under item 4 and items 5c, 5d and 5e of the request. Article 7(5) of the AIE Regulations is the relevant provision where the requested information is not held by or for the public authority concerned. It provides that where a request is made by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it. As a similar (though not identical) ground for refusal in relation to records ''not held'' is provided for under section 15(1)(a) of the FOI Act, my approach in dealing with cases involving an article 7(5) claim is guided by the experience of the Office of the Information Commissioner in relation to section 15(1)(a) cases. In essence, I must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the relevant circumstances. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must necessarily apply.
Item 4. A schedule of all visits made to the monitoring sites and surrounding area and to include inter alia copies of all observations and measurements made during those visits.
The appellant maintained that, in addition to information collected by RPS and its subcontractor and provided to him during this review, additional information is held. He claimed that handwritten notes and data from additional monitoring equipment deployed is held. The Council maintained that it has provided the appellant with all the information held under this item of the request.
Item 5c. Access to audio files collected
RPS carried out audio recording for the entire noise survey period. According to the Council, this resulted in approximately 13,440 hours of audio for 10 sites and close to 12,096 hours of audio for three sites. Both the Council and RPS have stated no other audio data now exists from this project other than what was made available to the appellant in July 2017. They stated that the remainder of the data was deleted by RPS. The appellant is not convinced and made several submissions on why the entire audio data set may still be held.
Item 5d. Access to wind speed data
RPS submitted that it did not retain the wind speed data it held as the wind farm operators who provided the data did so on the explicit understanding that it would not be made publicly available due to its commercial sensitivity. The Council and RPS stated that none of the wind speed data collected under item 5d was retained and therefore is not held.
Item 5e. Access to SCADA data collected from the wind farms
SCADA stands for ‘Supervisory Control and Data Acquisition’. The Council submitted that the wind farm companies only allowed RPS to observe this data and, therefore, no notes or records were taken. Both RPS and the Council have confirmed that they do not hold SCADA data from the wind farms.
In this case, the Council's claim that article 7(5) applies to any additional environmental information requested by the appellant is based on the claim that either such information never existed in the first instance or has been deleted and is no longer available. Having regard to all the circumstances, I find no basis for disputing this claim. I am satisfied with the adequacy of searches undertaken by the Council. It provided my Office with the questions it asked RPS and the copies of the responses received. A subsequent follow up directly with RPS provided satisfactory answers to my Investigator’s queries. I have seen no evidence in the course of this review that contradicts the Council’s assurance that no additional information or data under items 4, 5c, 5d and 5e exists. Accordingly, I am satisfied that article 7(5) applies.
Regrettably, much of the audio data collected was deleted by RPS after sign off and publication of the final reports. The Council cited the cost of storage and the presence of identifiable personal information in the audio recordings as the reasons for this. The appellant stated that the Council has permitted a complete failure of its obligations under AIE and that this compromises the spirit of the AIE Directive and the Aarhus Convention. I stated in CEI/16/0033 (available on www.ocei.ie) and highlighted in my Annual Report 2017 , that it is best practice for a public authority to ‘freeze’ a copy of the relevant information on first learning of an AIE request for it. I am disappointed that this approach does not appear to have been considered by the Council at the time of the request. Nonetheless, I have no reason to find that the data is still held.
Decision
In accordance with article 12(5) of the AIE Regulations, I have reviewed the Council’s decision in this case. I find that the Council’s decision to refuse the appellant’s request was justified under articles 7(5), 8(a)(i) and 9(2)(a).
Appeal to the High Court
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