Decision
Mr McC and Cork City Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152065-G6R4N2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-152065-G6R4N2
Published on
Whether Cork City Council is entitled to refuse access to information requested by the appellant on the grounds of article 9(1)(c), Article 3(1) and Article 7(5) of the AIE Regulations
28 November 2024
1. On 24 May 2024, the appellant made a request Cork City Council as follows:
a) All correspondence issued by Cork County [City] Council in respect of Planning Application Ref. No. 23/41867;
b) Without prejudice to (a) above, all correspondence issued by Cork County Council in respect of the above-referenced planning application being determined to be incomplete and/or to be non-compliant (i.e. non-compliant with the Planning and Development Regulations 2001 (as amended)) and/or to be invalid;
c) Without prejudice to (a) or (b) above, all information (internal or externally-communicated) concerning and/or recording the reasons why the above referenced planning application was determined to be incomplete and/or non-compliant and/or invalidated.
2. On 9 July 2024, the Council refused part (a) and (b) the appellant’s request under article 9(1)(c) and refused part (c) under article 7(5) of the AIE Regulations. The Council stated that a legal duty of confidentiality can include FOI exemptions, including S36 (1) of the FOI Act (Mr Darragh McDonagh and Galway Harbour Company CEI/17/0053) and that that the public interest in disclosure does not outweigh the interest served by refusal as per Article 10(3) of the Regulations. The Council stated that there was no internal communication concerning and/or recording the reasons why the above referenced planning application was determined to be incomplete and/or non-compliant and/or invalidated.
3. On 25 July 2024, the appellant requested an internal review.
4. On 22 August 2024, the Council responded to the appellant’s request for an internal review. It affirmed the original decision to refuse access under articles 9(1)(c) and 7(5).
5. The appellant appealed to this Office on 16 September 2024.
6. I am directed by the Commissioner for Environmental Information to carry out a review of this matter under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by all parties to the appeal. I have also considered submissions made by all third parties relevant to this case. In addition, I have had regard to:
• 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);
• The Aarhus Convention – An Implementation Guide (Second edition, June 2014) (’the Aarhus Guide’); and
• 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).
• 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);
• The Aarhus Convention – An Implementation Guide (Second edition, June 2014) (’the Aarhus Guide’).
• The decision of the Court of Appeal in Redmond v Commissioner for Environmental Information [2020] IECA 83 (Redmond).
• The decisions of the Court of justice of the European Union (CJEU) in C-673/3 P European Commission v Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe); C-442/14 Bayer CropScience and Stichting De Bijenstichting V Collee voor de toelating van gewasbeschermingsmiddelen en biociden (Bayer); and C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg);
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 in each of these appeals is to review Cork City Council’s internal review decisions and to affirm, annul or vary it.
9. My review in this case is concerned with whether Cork City Council is entitled to refuse information within the scope of the appellant’s request under article 9(1) (c) and whether the Council had established that it did not hold any further information in accordance with article 7(5) of the AIE Regulations.
10. The Council in its submissions to this Office dated 4 October 2024 made submissions arguing that information sought is not environmental information. In light of this I have extended the scope of this review to include whether the Council was justified in refusing access to the records requested on the basis that the records are not “environmental information” within the meaning of the definition in article 3(1) of the Regulations.
11. The Council made submissions in respect of this appeal, which are summarised as follows:
a) The only correspondence issued by Cork City Council in respect of the relevant planning application was a letter of invalidation.
b) Access to this letter was refused as it was felt that its release could be detrimental to the commercial interests of the company and individual involved.
c) The Council has received legal advice suggesting that the letter does not meet the definition of environmental information as set out in the AIE Regulations.
d) In respect of whether any additional information might exist that it relevant to this request, the Council stated that the documentation was checked by a single staff member, who decided that it did not meet the threshold required to be a valid application. Once this was the case, the application together with the letter of invalidation was sent back to the applicant. No internal communication/correspondence exists as none was required or took place.
e) Efforts were made in this case to contact the company that applied for planning permission under the relevant reference number. This Office contacted the architect firm that acted for the company in respect of the application. No response was received to this correspondence, or to a follow up phone call.
12. I will firstly address the statement in the Council’s submission where it states that a letter of invalidation is not environmental information.
13. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with Article 2(1) of the AIE 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). "
14. 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. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). It is particularly important in this case to note that the information requested does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43).
15. In my view, paragraph (c) of the definition, which provides that “environmental information” means any 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, is the most relevant to this review. Accordingly, I will proceed to consider it first.
16. Paragraph (c) requires the identification of a relevant measure or activity, which the information at issue is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples, namely “policies, legislation, plans, programmes, environmental agreements, and activities” (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20, emphasis added).
17. It is apparent from the Council’s website that the relevant planning application was for permission to construct 203 housing units at the Former Nemo Rangers GAA Ground at South Douglas Road. As is set out above, the Council made a decision that the application was invalid. I consider that the relevant measure in this case is the Council’s decision on the relevant planning application.
18. To meet the definition, the measure or activity must affect or be likely to affect the elements and factors referred to in paragraphs (a) and (b) (i.e. the environment) or designed to protect the environment (Redmond at paragraph 57). 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).
19. It is also important to note that an intervention that does not constitute or is not likely to lead to “development” – in the sense in which that term is generally understood in the context of planning and environmental law – may nonetheless constitute a measure or activity “affecting or likely to affect the environment” and that inaction or omission may affect the environment as much as positive development (Redmond, at paragraph 12). Furthermore, the actual outcome of a measure or activity is irrelevant. In this respect, I note the analysis of Hogan J in Minch at paragraph 40 of his judgment.
20. In my view, there is a real and substantial possibility that any decision made by a planning authority on deciding whether a planning application is valid or invalid, will affect the environment. On the one hand a decision to accept a planning application as valid demonstrates that all the documents, such as site maps, plans and drawings allows the planning process to commence. On the other hand, a decision to return an application as invalid means that there may be elements of the drawings or site plans that are insufficient, which may be of benefit to future applicants for similar projects. The decision that this application is valid delays any prospect of development at the site in question, and accordingly affects the environment to which the application relates.
21. I find, therefore, that the Council’s decision on the relevant planning application is a measure or activity likely to affect the environment. I also consider that the decision that the application is invalid is a measure designed to protect the environment. The Council has certain requirements for planning applications to ensure that all relevant matters including environmental considerations, can be considered by it as the planning authority. The Council’s decision to reject the application as invalid protects the environment, as it ensures that planning decisions are not made without due consideration to all relevant matters. Accordingly, the decision that the application was invalid is a measure within the meaning of article 3(1)(c) of the AIE Regulations.
22. Where the relevant measure or activity has the requisite environmental effect, one must consider whether the requested information is “on” that measure or activity within the meaning of article 3(1) of the AIE Regulations. Information is “on” a measure or activity if it is about, relates to or concerns the measure or activity in question (Henney at paragraphs 37-44, referred to in Redmond at paragraph 99, ESB at paragraphs 36-45, and RTÉ at paragraph 52). As “any information … on” a measure affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment (Redmond at paragraphs 57 and 59). However, consideration of whether information is “on” the measure does require examination of the content of the information (ESB at paragraph 50).
23. I consider it to be self-evident that the letter of invalidation is information “on” the Council’s decision that the planning application was invalid, as the letter records that decision and conveys it to the appellant. Accordingly, I conclude that the information sought is environmental information.
24. I would note that it is unhelpful when public authorities only raise this type of issue at the stage of an appeal to this Office. Whether information is environmental information is a threshold issue for AIE requests and should be considered at original decision stage, if relevant. I would also note that the Council’s submissions in this respect were simply a statement that it had received legal advice that stated that the information sought was not environmental information, with no accompanying reasons or explanation as to why that might be the case. I would ask the Council to ensure that any submissions made to this Office in future appeals engage more fully with the relevant issues.
25. The Council refused access to the letter, relying on article 9(1)(c) of the AIE Regulations, which states that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
26. A number of elements are required in order to engage the exemption provided for in this article:
a) The confidentiality of the information must be provided for by law.
b) The confidentiality must be commercial or industrial.
c) The confidentiality must protect a legitimate economic interest.
d) The confidentiality would be adversely affected by disclosure.
27. The Council’s original and internal review decisions refer to s.36(1)(b) of the Freedom of Information Act 2014, presumably in reference to the legal basis for confidentiality in this instance. However, mere reference to the provision that may potentially provide for the confidentiality of the information sought is not sufficient. The Council failed to set out how s.36(1)(b) applies to the information sought, both in its original and internal review decisions and in its submissions to this Office. In order for this provision to apply, it must be shown that the disclosure of the information could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of that person in the conduct of his or her profession, business or occupation. It is also necessary to consider the public interest test that is required by s.36(3). Equally, in order to rely on article 9(1)(c) it must be established that the confidentiality exists to protect a legitimate economic interest. In order to establish that this is the case, it must be shown that some harm would arise to that legitimate economic interest if the information sought was to be released.
28. The Council have not alluded in the decisions made in respect of this request or in its submissions to this Office as to any material loss or any other harm or prejudice that may occur if the letter of invalidation was provided to the appellant. Due to this, the Council have not established that either a) the confidentiality of the information is protected by s36(1)(b) of the FOI Act, or (b) that any confidentiality is protecting a legitimate economic interest. Accordingly, I am not satisfied that article 9(1)(c) of the AIE Regulations applies to the information sought.
29. As noted above, efforts were made by this Office to contact the company that made this planning application, and no response was received. I have reviewed the letter in question. The letter states that the application has been declared incomplete, and cites a number of related statutory provisions. I am not satisfied that any of the information contained in the letter would cause any prejudice or harm to the legitimate economic interests of the company concerned. Given the contents of the letter, I am satisfied that I can make this finding without having received submissions from the company who made the planning application. I also note that it is a matter of public record that the application was declared incomplete, as this information is available on the Council’s website. Accordingly, I am satisfied that s36(1)(b) of the FOI Act and article 9(1)(c) of the AIE Regulations do not apply and I will annul the decision of the Council and direct release of the record concerned.
30. The Council should note that the duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office. I am not satisfied that the Council provided sufficient reasons in this instance, and would ask the Council to ensure that it provides more detailed reasoning if refusing future AIE Requests.
31. The appellant contends that the Council has not taken all reasonable steps to locate the information requested. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held 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”.
32. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied.
33. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the regulations;
i. an outline of exactly which areas/units etc. of the organisation were searched for the information.
ii. an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate.
iii. details of the individuals consulted in connection with the search.
iv. a description of the searches carried out to cover the possibility of misfiled/misplaced records.
v. details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case.
vi. the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
34. The Council’s submissions state that “the documentation was checked by a single staff member, who decided that it did not meet the threshold required to be a valid application. Once this was the case, the application together with the letter of invalidation was sent back to the applicant. No internal communication/correspondence exists as none was required or took place.”
35. Firstly, the Council should note that the appellants request was not limited to internal communications, but was for all information held by the Council on why the relevant planning application was determined to be incomplete. It is not evident from the decisions or the Council’s submissions whether any searches were in fact carried out for additional information. Accordingly, I am not satisfied that the Council has established that it took all reasonable steps to identify information relevant to the appellant’s request. I therefore annul the Council’s decision to refuse part (c) of the appellant’s request and will require the Council to carry out a new internal review process in respect of this part of the request. In doing so, the Council should provide the appellant with information on the steps taken to search for and identify information relevant to his request, and may wish to provide the appellant with copies of any internal policies and procedures that may be relevant to its submissions regarding how the application was declared invalid.
36. Finally, I would note that the Council utilised article 7(2)(b) of the AIE Regulations to extent the time for making an original decision on this request. This provision can only be utilised where the public authority is unable to make a decision in one month due to the volume or complexity of the information requested. Given that only one record was located relevant to this appeal, it is clear that this was an incorrect use of this provision. The Council should note this for future AIE requests and ensure that this provision is only utilised where the information sought is in fact voluminous or complex.
37. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul Cork City Council’s decision. I direct release of the withheld record, namely the letter of invalidation. The Council should carry out a new internal review process in respect of part (c) of the appellant’s request.
38. 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