Decision
Mr X and DAA Public Limited Company
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-147274-W9X3W9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-147274-W9X3W9
Published on
Whether the Department was justified in withholding the information under article 3(1) of the AIE Regulations
28 November 2024
1. On 12 January 2024, the appellant made a request to DAA for information in electronic format, relating to the following:
“[T]he number of airline passengers handled at Dublin Airport for each day of the month of December 2023. If possible, could you break the daily numbers into different passenger types: transfer, transit and origin-destination passengers”.
2. DAA responded to this request on 9 February 2024, informing the appellant that it was refusing this request. The decision stated that“the daily breakdown of the number of passengers alone does not constitute environmental information. The decision also provided the requestor with a link to a page on DAA’s website containing a report titled ‘Almost 32 Million Through Dublin Airport’s Terminals in 2023’. This report provides an overview of the monthly passenger numbers at Dublin Airport Terminals in 2023, which includes December 2023.
3. The appellant sought an internal review on the same day and contended that:
“Of course the number of passengers is a key element of the environmental effects of activities at the airport.”
4. On 8 March 2024, DAA issued its internal review decision. In doing so, it affirmed its original decision and stated that:“[T]he daily breakdown of the number of passengers alone does not constitute environmental information” as defined by article 3(1) of the AIE Regulations.
5. On 12 March 2024, the appellant submitted an appeal to this Office.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Department and the appellant as outlined above and to correspondence between my Office and both the Department and the appellant on the matter. 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’).
7. In accordance with article 12(5) of the AIE Regulations, my role is to review DAA’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require DAA to make available environmental information to the appellant.
8. This review concerns whether DAA was justified in refusing access to information on the number of airline passengers handled at Dublin Airport for each day of the month of December 2023 under the categories of: transfer, transit and origin-destination passengers on the basis that the information sought is not environmental information.
9. Article 3(1) of the AIE Regulations sets out the definition of “environmental information”, as follows:
a. [A]ny information in written, visual, aural, electronic or any other material form on –
i. 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,
ii. 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,
iii. 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,
iv. reports on the implementation of environmental legislation,
v. cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
vi. 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).
10. The AIE Regulations transpose the AIE Directive at national level and the definition of “environmental information” in the Regulations, mirrors that contained in the 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 and enable an informed public to participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive.
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".
11. 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.
12. In this case, I consider that article 3(1)(c) of the AIE Regulations is the relevant provision to consider.
13. This Office’s approach to dealing with this type of case is to adopt a step-by-step approach by firstly, identifying the measure or activity in question; next assessing how likely it is to affect or designed to protect the environment and lastly, considering whether the information sought by the appellant is on the measure or activity within the meaning of article 3(1)(c) of the AIE Regulations.
14. The first step is to identify the relevant measure or activity to which the information in question relates. 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), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ, at paragraph 19).
15. DAA has a statutory responsibility for the management, operation and development of Dublin Airport. In this case, I consider that the relevant activity within the meaning of paragraph (c) in is air travel through Dublin Airport. This is the central business of DAA and is the appropriate activity to consider in the circumstances of the case.
16. The next step is to assess whether the measure or activity is “likely to affect” the elements and factors of the environment or, as the case may be, it is designed to protect the environment. 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.
17. I consider that it is self-evident that the relevant activity, air travel through Dublin airport, has a direct impact on the environment due to emissions created by air travel. It is noted how the measure of a strict passenger cap of 32 million was introduced to reduce greenhouse gas emissions and also to ensure that noise levels emanating from the airport are minimised. I am therefore satisfied that air travel through Dublin Airport is an activity likely to affect the environment within the meaning of article 3(1)(c) of the AIE Regulations.
18. The final step to consider is whether the information requested by the appellant is information “on” the measure […] or the activity. 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” It is not sufficient for information to be merely connected to the measure or activity, but the information need not to be specifically, directly or immediately about the measure or activity.
19. In support of this conclusion, Henney further 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 in the Convention and 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).
20. My reading of the guidance provided by the Courts in Henney, ESB and RTÉ is that there is a line with information that is environmental information on one side, and information that is not environmental information on the other. The question I must consider is where the line is drawn in this particular case. The example referred to in Henney noted that a report on PR and advertising strategy might be considered information “on” the Smart Meter Programme “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 (see paragraph 46).
21. I consider that the requested information is clearly information on air travel through Dublin Airport. The number of passengers, whether broken down on a daily basis or otherwise, is a clear indication of the level of air travel through Dublin Airport, and will be an indication of the environmental impact of that travel. The higher the number of passengers, the greater the environmental impact. The information will advance the aims of the Aarhus Convention and the AIE Regulations as it is relevant to public debate about the level of activity at Dublin Airport, particularly in relation to the strict passenger cap policy. Accordingly, I consider that the information sought is information “on” air travel through Dublin Airport and is environmental information within the meaning of article 3(1)(c) of the AIE Regulations.
22. I note that in submissions to this Office, DAA stated, “It should be noted that the appellant was provided with a monthly figure of passenger numbers for December 2023. In my opinion, providing a daily breakdown would not offer any substantial environmental insights beyond what is already available in the monthly data.” The question of whether the daily breakdown would provide any further insight over and above information already available to the public is largely irrelevant to whether the information sought is environmental information. Whether DAA holds the information sought and whether it is required to provide it to the requestor in the form or manner requested (daily numbers of passengers, broken down into a number of categories) is a matter for DAA to consider when carrying out a new internal review process.
23. Having carried out a review under article 12(5) of the AIE Regulations, I find that the information sought is environmental information. I annul the decision of DAA. DAA should now provide the appellant with a new internal review decision.
24. 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