Decision
Mr Eoin Brady and An Bord Pleanála
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135932-T9P5G5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135932-T9P5G5
Published on
Whether An Bord Pleanála was justified in refusing the appellants request on the basis that the information sought was not 'environmental information' within the meaning of the definition in article 3(1) of the AIE Regulations
24 January 2024
1. On 19 December 2022, the appellant wrote to An Bord Pleanála (ABP) and outlined the following AIE request: “In June the Chairperson of An Bord Pleanála established a Senior Management Team to carry out an Internal Review Process into Board Procedures and Practices (“the Internal Review”). This Internal Review subsequently reported to the Chairperson of the Board. I wish to request a copy of the Internal Review report.”
2. On 1 February 2023, the internal review report was published in full on “The Ditch” website, without the consent of ABP.
3. Nonetheless, ABP responded to this request on 7 February 2023, refusing access on the basis that the information requested was not environmental information as defined by article 3(1) of the AIE Regulations.
4. The appellant requested an internal review on the same day, and ABP’s internal review of 13 February 2023 affirmed its original decision and also included the following:
“The Internal Review Report on compliance with the internal controls, systems, and procedures in An Bord Pleanála conducted by Senior Management personnel does not come under the interpretation of “environmental information” as specified in the AIE Regulations 2007 and is therefore not accessible to the public via these Regulations”.
5. The appellant submitted an appeal to this Office on 28 February 2023.
6. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to all submissions made. I have also examined the contents of the record at issue. In addition, I have had regard to:
• the judgments 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;
• 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);
• 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’).
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. This Office’s review in this case is concerned with whether the withheld record comes within the definition of “environmental information” contained at article 3(1) of the Regulations.
8. I also note that the original decision in this appeal issued outside of the one-month timeline provided for in the AIE Regulations, and that this was not commented on by ABP in its decision. Public authorities should bear in mind that the timeframes provided for in the AIE Regulations should be strictly adhered to.
9. ABP’s Strategic Plan for 2018-2023 sets out that ABP plays a critical role in the Irish planning system deciding appeals of planning decisions made by local authorities and direct applications for major housing, infrastructure and other categories of development. Its role is to carry out independent assessments of cases and make decisions which respect the principles of proper planning and sustainable development in a fair, equitable and timely manner. The Planning and Development Act 2000, as amended, provides ABP’s mandate to ensure that appeals, applications and referrals are disposed of as expeditiously as possible. Planning decisions are made in line with government and EU policy and legislation, having regard to a range of specified plans, policies and guidance documents. Further, the legislation requires that ABP shall, in performing its functions, be independent while operating within the general framework of public policy.
10. In 2022, the Board attracted major regulatory and public attention in relation to its operations and procedures, in particular in relation to potential conflicts of interest that may arise during the course of the decision-making process. The record at issue in this AIE request concerns the internal review report which examined these matters.
11. The appellant submits that the document in question is environmental information, as it is a report on the implementation of environmental legislation.
12. ABP outlined in its submission to this Office that the record in question was an internal review report on Board procedures and practices, and that ABP considers that the report does not, in its opinion, constitute “environmental information” as defined in article 3 of the AIE Regulations. Therefore, the request for access to the report was refused in accordance with article 3.
Definition of “environmental information”
13. Environmental information is defined in article 3(1) of the Regulations and article 2(1) of the Directive as “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 referred to in (a);
c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements of the environment 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 (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 (a), or, through those elements, by any of the matters referred to in (b) and (c).
14. The AIE Regulations transpose the AIE Directive at national level. 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.
15. 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, at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig, at paragraph 25). Information 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). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information.
16. In my view, the definition of environmental information provided for in paragraph (c) as set out above is the most relevant in this appeal.
17. 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). 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, at paragraph 42). In identifying the relevant measure or activity that the information is “on” one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB, at paragraph 43).
18. As noted by Barrett J in RTÉ, where an assessment under article 3(1)(c) is to be carried out, the first step is to identify the relevant measure or activity. It is important to note that 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 at paragraph 42). In identifying the relevant measure or activity that the information is “on”, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB at paragraph 43).
19. 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 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". 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 the 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 (paragraph 21; see also Glawischnig at paragraph 25).
20. The CJEU in Mecklenberg stated at paragraph 20 of its judgment that “the use in Article 2(a) of the Directive of the term ‘including’ indicates that ‘administrative measures’ is merely an example of the ‘activities’ or measures’ covered by the directive”. It noted that “as the Advocate General pointed out in paragraph 15 of his Opinion, the Community legislature purposely avoided giving any definition of ‘information relating to the environment’ which could lead to the exclusion of any of the activities engaged in by public authorities, the term ‘measures’ serving merely to make it clear that the acts governed by the Directive included all forms of administrative activity”.
21. Barrett J remarked in RTÉ that “the European Court of Justice [in Mecklenberg] could not have taken a more expansive view of what comprises an administrative measure for the purposes of the 1990 directive” (paragraph 19). He also noted that Recital 2 of the current AIE Directive should be borne in mind when approaching case-law, such as Mecklenberg, which is concerned with Directive 90/313/EEC, the predecessor to the current AIE Directive (RTÉ, paragraph 7). Recital 2 of the AIE Directive provides as follows:
“Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment initiated a process of change in the manner in which public authorities approach the issue of openness and transparency, establishing measures for the exercise of the right of public access to environmental information which should be developed and continued. This Directive expands the existing access granted under Directive 90/313/EEC….”
22. Barrett J considered the reference to the current AIE Directive having “initiated a process of change” to be noteworthy and concluded that “what had been in play over the course of the lifetime of [the previous AIE] directive and its more recent successor is an evolutionary process”, the consequence being that “one must approach the current directive as being not just expansive but increasingly so” (RTÉ, paragraph 8). He also stated that it was “difficult to conceive of how the Community legislature could have taken a more expansive approach to the scope of the concept of “environmental information”, having regard to Recital 10 of the current AIE Directive (RTÉ, paragraph 9).
Does this case involve measures or activities, which give rise to the environmental impact required under article 3(1)(c)?
23. The relevant “measure” in this appeal is the internal review process carried out by ABP. ABP is a statutory body whose main function is to review planning decisions. ABP’s 2022 Annual Report sets out that its mission is “to play [its] part as an independent national body in an impartial, efficient and open manner, to ensure that physical development and major infrastructure projects in Ireland respect the principles of sustainable development, including the protection of the environment”. As previously set out above, the internal review report at issue in this case examined potential conflicts of interest which may arise during the course of ABP’s decision-making process. The report states that its objective is to maintain public confidence in ABP and continue to protect and enhance its reputation for independence, impartiality, trust, integrity and transparency.
24. In this case, the internal review process was undertaken by ABP to identify whether there are specific risks to the effectiveness of compliance with the internal controls, systems and procedures under the Board’s relevant statutory framework and Code of Conduct. I am satisfied that the internal review process by ABP may impact the environment in numerous ways. Firstly, the Environmental Impact Assessment requirements form part of ABP’s procedures which the internal review process set out to examine. Accordingly, within the contents of the internal review report, the likely effects to the environment include the efficiency of the board in making planning decisions based on fairly distributed board member/inspectorate file allocations while also ensuring that the decision making process is fully transparent, eliminating personal bias with applications from individuals known to Board members, and how fast decisions are made by the Board going forward. The identification of potential conflicts of interest led to ABP conceding a number of legal challenges. It is also clear that any recommendations made following the internal review process would in turn likely have an effect on the procedures of how certain planning decisions are made. These planning decisions affect the environment to which they relate. Subsequently, in having consideration for the activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) of the definition, I have also taken into account that included within ABP’s processes are the Board’s decisions which, dependent on planning decision outcomes, and relevant EIAs if required, will in turn affect or likely affect the elements and factors identified.
25. Taking the above into account, and also in line with ABP’s mission and core purpose in reviewing planning decisions, I am satisfied that the internal review process by ABP is a measure with more than a remote or theoretical possibility of environmental impact as it leads to increased public access to environmental information which, as set out in Recital 1 of the AIE Directive, contributes to more effective participation by the public in environmental decision-making and, in turn, leads to a better environment. Having reviewed the information in full, I find therefore, that the internal review process carried out by ABP is a measure which is likely to affect the environment as set out by paragraph (c) of the definition.
26. I also have consideration for the activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) of the definition and have taken into account that included within ABP’s processes are the Boards decisions which in turn will affect or likely affect the elements and factors identified.
Is the relevant information, information “on” those measures or activities?
27. The next question to consider is whether the information requested by the appellant is information “on” the measure identified above. Again, RTÉ (see paragraph 52) endorses the approach set out by the Court of Appeal of England and Wales 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 para 37 and 45). The Court found that:
“…the way the line will be drawn is by reference to the general principle that the Regulations, the Directive, and the Aarhus Convention are to be construed purposively. Determining on which side of the line the information falls will be fact and context-specific. But it is possible to provide some general guidance as to the circumstances in which information relating to a project will not be information on the project for the purposes of section 2(1)(c) because it is not consistent with or does not advance the purpose of those instruments.
My starting point is the recitals to the Aarhus Convention and the Directive, in particular those set out at para 15 above. They refer to the requirement that citizens have access to information to enable them to participate in environmental decision-making more effectively, and the contribution of access to a greater awareness of environmental matters, and eventually, to a better environment. They give an indication of how the very broad language of the text of the provisions may have to be assessed to provide a framework for determining the question of whether in a particular case information can properly be described as on a given measure” (paras 47 and 48).
28. The guidance provided by the Courts therefore suggests that there is a sliding scale, with information integral to a measure at 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 “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). 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 above, or to participate in, decision-making in a better way” (see paragraph 43).
29. It is my view that there can be no doubt that the record at issue can be considered integral to the measure in this case. The internal review report contains information “on” ABP’s internal review process as the report itself is the outcome of the examination of the effectiveness of compliance with ABP’s current systems and procedures, and also makes recommendations on ABP’s administrative practices going forward in light of issues which arose that affected its ability to fulfil its mission and follow its core organisational values. The matters considered in the report, as well as the recommendations made, are likely to have a substantive effect on the decisions of ABP and with that on the environment at the locations to which these decisions relate. Thus, I consider that ABP’s internal review process is not at such a remove from the internal review report to render them remote. The information is directly related, and moreover, I consider that access to the information would enable the public to be informed about decision making on matters affecting the environment, such as the procedures implemented by ABP concerning planning decisions and to enable debate about proper planning administration in Ireland.
Conclusion
30. In conclusion, I find that the record at issue is environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. I note the appellant’s position in his appeal to this Office that the information falls under paragraph (d) of article 3(1), however in light of my finding within paragraph (c), it is not necessary for me to consider whether the records also fall within other paragraphs of the definition.
31. As the report in full is already in the public domain, I will annul the decision of ABP, but there is no necessity for me to direct release of the information sought or make any other direction. I note that the report was in fact available prior to the appeal to this Office. In future, I would ask the parties to consider whether an appeal is necessary in cases where the information sought is in fact already available. It would be open to me to have closed this appeal solely based on it being moot, without making any other findings.
32. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul ABP’s decision to refuse access to the record at issue on the basis that it is not “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations.
33. 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