Decision
Mr C and Irish Aviation Authority
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141513-Y0T1D8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-141513-Y0T1D8
Published on
Whether it was correct for the IAA to redact information before releasing it to the appellant, to transcribe information from email correspondence and release it in this form to the appellant instead of releasing redacted copies of that email correspondence, and whether it carried out adequate searches in order to identify further information relevant to the request in accordance with article 7(5) of the AIE Regulations
18 October 2024
1. The appeal relates to a request for information submitted to the IAA on 25 October 2022 as follows:
“a copy of the complete record of each complaint made by a member of the public (including a corporate person) to [the IAA] or to any staff or board member thereof, whether it be made orally, by letter, fax or email, about environmental noise, or aircraft perceived to be flying below a height deemed unsafe or unhealthy by the complainant or any environmental nuisance arising from aircraft flying in and out of Weston Aerodrome, counties Dublin and Kildare, during the two-year period ending on 31st August, 2022 [Part 1 of the Request].
“Together with a copy of the report made by the receiving staff member or other authorised staff member of the IAA who received each complaint or who was given each complaint for action, as to the action, remedial, inspecting or otherwise, taken on foot of each complaint and made at the time such action, if any, was taken” [Part 2 of the Request].
2. On the same date, the appellant received an acknowledgement of receipt of the request.
3. Almost two months later on 23 December 2022, the appellant sent a further email to the IAA, stating that he had not received the information sought within the timeframe stipulated in the AIE Regulations, nor any notice of an extension for the provision of a response, nor any other information or substantive response, and sought a response to his request. An acknowledgment of his email elicited a response from the IAA on the same day, with an assurance that a response to his request would issue in the first week of January 2023.
4. On 6 January 2023, a decision letter issued to the appellant accompanied by what it described as “a redacted document relating to complaints we have received.”
5. On 3 February 2023 the appellant requested an internal review of the IAA’s decision, which, he asserted, did not provide the information he had sought. Specifically, he stated that the printed document provided to him did not specify the dates of each complaint, was a “reproduction” (transcription) of the original records, appeared to include only complaints received by email and did not provide information on complaints made by telephone or other means. In addition, he alluded to the lack of any record pertaining to the identity of the staff members who had been assigned to deal with the complaints and of records containing remedial action taken by such staff. His email to the IAA also protested against the long delay in providing him with a substantive response to his request, referring to the one-month timeframe in the AIE Regulations within which a decision is stipulated to issue.
6. Almost six weeks later, on 14 March 2023, the appellant wrote to the IAA to indicate he had not received any substantial response to his internal review request nor any explanation for the IAA’s failure to comply with the AIE Regulations.
7. Having received no response, six days later on 20 March 2023, the appellant wrote again to the IAA formally requesting an internal review of its initial decision. On the same day, he submitted an appeal to this Office on the basis of the absence of a response from the IAA to his internal review request.
8. Meanwhile, on 18 July 2023, the IAA issued an internal review decision to the appellant in which it apologised for the delays in providing the information sought and the internal review decision. The decision varied the original decision and provided additional information, but without stating in the letter the nature of the variation or of the additional information. From a review of the annex to the letter containing the complaints, it appears that the variation and additional information consist of the provision of the text of one further complaint received by the IAA and dates attached to each of the complaints. I note, for the record, that there is no explanation in the letter to the significance of the dates. If they should denote the date of receipt of the complaints, the investigator assigned to the appeal has made the point that the additional complaint provided is outside the scope of the original request, which was for information pertaining to a two-year period up to 31 August 2022. For this reason, that additional complaint shall be ignored for the purposes of this appeal decision.
9. The internal review letter explained that the IAA does not accept complaints made by telephone relating to aircraft noise and therefore had no records of such complaints. It also made reference to the redaction of certain elements of the information provided in order to “maintain the confidentiality of the complainants and other data that could lead to the identification of individuals” but with no reference to the IAA’s reliance on the AIE Regulations by which to carry out such redactions. The letter noted, finally, that the IAA is not the competent authority for the purpose of enforcing aircraft noise regulations.
10. Following receipt of the internal review request, the appellant submitted a further appeal to this Office on 15 August 2023, noting the absence in the IAA’s decision letters to him of information pertaining to complaints made by telephone and by post, to the identity and title of officers assigned to deal with the complaints, to reports of the action taken by the IAA on foot of the complaints and to the redaction of aircraft registration numbers to which reference was made in the complaints submitted to the IAA. I shall make reference below to the fact of the submission by the appellant of two appeals to this Office arising from the same request.
11. In October 2023, the IAA made submissions to this Office in support of its response to the appellant’s request.
12. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal, which I have now completed under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and the Department. 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’);
13. What follows does not make findings on each and every argument advanced but all relevant points have been considered.
14. This appeal is concerned with whether the IAA was entitled to redact information it released to the appellant on the basis of the confidentiality or privacy interests of corporate and other entities and of IAA staff members, whether it was correct in transcribing information it released to the appellant from email correspondence instead of releasing redacted copies, either scanned or photocopied, of the actual email correspondence received and whether it carried out adequate searches in order to identify other information that might be relevant to the request, in accordance with article 7(5) of the AIE Regulations.
15. As noted above, the appellant has made two appeals to this Office on foot of his one single request for information to the IAA. The second appeal appears to have been made following the lack of any response from the public authority to his request for an internal review dated 3 February 2023. This second appeal, dated 11 August but received in this Office on 15 August 2023 as it was submitted by post, was assigned an appeal number, despite the existence of an extant appeal relating to the same request for information, submitted in March 2023. For the benefit of both the appellant and the public authority in this case, the number which appears at the top of the first page of this decision is the new appeal number, which supersedes the previous appeal number that had been quoted in correspondence with this Office heretofore by the parties.
16. The public authority in this case did not comply with the timelines stipulated in the AIE Regulations in regard both to the provision of a decision letter in response to the appellant’s request for information and to the provision of an internal review decision following his submission of an internal review request. The Regulations are quite clear, first in article 7(2)(a) and second in article 11(3), that a public authority has one month within which to issue, respectively, a response to a request for information and a response to an internal review request. Article 7(2)(b) of the Regulations provides for an additional one month to respond to an initial request for information, given certain circumstances and requiring notice of such extension to a requester, but no such extension exists in respect of requests for internal review. I note the explanation given in its internal review letter of 18 July 2023 that delays in responding to the appellant arose from disruption to its normal business operations due to “a considerable level of statutory reform”.
17. I note for the record that the appellant expressed satisfaction, in his original request, to the redaction of the identity of complainants, which is, therefore, considered outside the scope of this request. This satisfaction did not, however, extend to the place of residence of the complainants, bar “house number or house name”. I shall elaborate on this point further below.
18. A review by the investigator of the content of the second appeal made by the appellant to this Office revealed certain content that does not align strictly with the information sought in his original request but refers to the competence of the IAA in regard to the enforcement of aircraft noise regulations. The IAA stated in its internal review letter that it is not the competent authority for such purpose, and in submissions to this Office asserts that Fingal County Council is the competent authority to deal with aircraft noise complaints. This is a matter in regard to which the appellant appears not to be in agreement. Suffice it to say for present purposes that consideration has not been given to this matter in this decision as it is considered outside the scope of the request. The appeal and this decision relate to whether the IAA correctly responded to the appellant’s AIE request and whether information relevant to the request is held by or for the IAA.
19. Finally, I note the absence of any reference in the decision letters issued by the IAA to any provision of the AIE Regulations, either generally or in the specific case of redactions made to information released and to information withheld such as the identity of the officers assigned to deal with the complaints received. This is disappointing, as the interaction between public authorities that are subject to the AIE Regulations and requesters for information is a core function of said authorities. Requesters are entitled to be given clear reasons not only for the refusal of information but also for the redaction of information. It is impossible for adequate reasons to be given in response to an AIE request without reference to the relevant legislation. I ask the IAA to ensure that it cites the provisions of the AIE Regulations in any future responses to AIE requests where redactions or the withholding of records is deemed necessary and gives details of the factors it has weighed when conducting the public interest balancing test required by article 10 of the AIE Regulations.
20. Finally, I note that the IAA did not, when requested, provide copies of the information relevant to this appeal to this Office. I consider that it is sufficiently clear from the information available to this Office what information has in fact been withheld from the appellant, and that I can proceed to make my decision on that basis. I expect the IAA to improve its engagement with this Office in relation to future appeals.
21. A number of matters arising from the IAA’s decision in this case and its submissions to this office require my attention and analysis. I shall deal with each in turn below.
Form in which information is released
22. Firstly, I note that the IAA did not release copies of records held by it to the appellant, but appears to have copied and pasted information into a schedule which issued with the original and internal review decisions. In normal course, when information is released by public authorities on foot of an AIE request for information, this is done in the original format of the record. It appears that the IAA copied and pasted the text of complaints and compiled them into a document to issue to the appellant in its original and internal review decisions. As noted above, in the original decision, the transcripts were on plain white paper, as they contained no dates, email address of the recipient (the IAA) or redactions of complainants’ names and email addresses. In the internal review decision, the text of the complaints was compiled into a table.
23. This is not an appropriate approach to the release of information under the AIE Regulations. Firstly, the appellant requested “a copy of the complete record” of each complaint, and secondly, the AIE Regulations oblige a public authority to make available to the requestor environmental information that is “held by” the public authority. I consider this to mean that a public authority should supply a requestor with the information sought in the form that it is held by the public authority, unless the requestor has sought information in a particular form or manner. A public authority may only release information in a form or manner other than that specified by a requestor where it justifies that decision under article 7(3) of the AIE Regulations. Due to this, the IAA should have issued copies of the actual emails it had received containing complaints, with appropriate redactions.
24. The internal review letter and the IAA submissions made reference to the redaction of certain elements of the information provided to the appellant in order, respectively, to “maintain the confidentiality of the complainants and other data that could lead to the identification of individuals” and “to uphold the privacy interests of the complainants and registered [aircraft] owners”.
25. Some of this information was not actually redacted, as it was not transcribed and therefore was omitted from the document issued to the appellant, but for the purposes of my analysis I shall deem it to have been redacted. The information redacted was:
(i) the names of the complainants in all five complaints that are within scope of the request, though in one, the name, rather than having been redacted, appears to have been deleted and merely left blank;
(ii) the town and county of residence of a complainant in one complaint;
(iii) the registration numbers of aircraft in two complaints:
(iv) the name of an entity in one complaint which textually refers to the entity as having been contacted by the complainant.
Names and address of complainants
26. As noted above, the appellant in his original request stated that he did not require information on the identity of the complainants, including their name and house name/house number. This information is therefore outside the scope of the request and of this appeal. I consider that this also places the email address of the complainant outside the scope of the appeal. However, this means that any information relating to the townland, town or county of a complainant is within the scope of this request, if this information is revealed in any particular complaint. I consider that the identification of a townland, town or county of residence of a complainant does not compromise the identity of a complainant, as this cannot be discoverable from identification of said information. I therefore find that article 8(a)(i) does not apply to this information.
27. As stated above, in relation to one complaint, the town and county of residence of the complainant was redacted by the IAA. I note for the record that this was done in the second version of the schedule of complaints that issued to the appellant with the internal review decision of 18 July 2023. This redaction was not done in the first version of the schedule that issued to the appellant with the IAA’s original decision that issued belatedly on 6 January 2023. In this first version, the town and county of residence of the complainant was left unredacted, with the remaining part of the address redacted. I find it puzzling that information that was released to the appellant in the first iteration of the schedule of complaints was redacted in the second iteration. As the name of the town and county has already been released and is considered to be in the public domain, there was no reason for the IAA to redact it in the second version of the schedule. Accordingly, when the IAA release this complaint to the appellant in its original format, the name of the town and county should be released to the appellant. I note that in each of two other complaints, the town of residence of the complainant has not been redacted in either version of the schedule, and that in one further complaint reference is made by the complainant to the name of a town but without identifying it as the town of his or her residence, which it may well be.
28. Accordingly, the IAA is directed to release copies of the complaint emails to the appellant, with appropriate redactions to the name, email address and, where applicable, house name or number. As noted above, such redactions will not encompass the names of townlands, towns or counties of residence of the complainants which would not lead to the identification of the complainant.
Aircraft registration numbers
29. In respect of the aircraft registration numbers, the IAA explained both to the appellant and to this Office that the register of aircraft is published on its website and includes the name and residential address of registered aircraft owners. It thereby infers that the release of the aircraft registration numbers would thus breach the “confidentiality” and/or “privacy interests” of the owners of such aircraft, as the identity of the owners would be revealed following an inspection of the aircraft register and discovery of the aircraft cited in the complaints.
30. While not referred to by the IAA, article 8(a)(i) of the AIE Regulations is the relevant provision where the public authority seeks to withhold personal information relevant to an AIE request. This provision states that a public authority shall not make available environmental information where the release 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”.
31. A visit to the aircraft register available on the IAA website was made by the investigator in this appeal, which revealed that, in respect of aircraft owned by private individuals, these persons are identified on the register simply as “private individual” with only their county of residence beside this descriptor. Consequently, I do not accept that any private owner of an aircraft can be identified by the release of the registration number of the aircraft that they own. Accordingly, if any of the aircraft registration numbers cited in the complaints belong to aircraft owned by private individuals, I do not accept that the identify of these persons can be deduced from the release of the registration numbers of those aircraft. Due to this, I find that the release of the information would not adversely affect the confidentiality of personal information relating to a natural person, and that article 8(a)(i) therefore does not apply. I direct release of this information.
32. However, the same inspection of the register by the investigator found that it does, in fact, include names and addresses of certain aircraft owners, but this is the case only in respect of aircraft registered, not to natural persons, but to corporations, charitable organisations, flying clubs and such like (hereinafter referred to simply as ‘corporate owners’). Article 8(a)(i) of the AIE Regulations provides for the non-disclosure of environmental information in cases where disclosure “would adversely affect the confidentiality of personal information relating to a natural person…” [emphasis added]. Article 8(a)(i) does not provide protection for the privacy interests of corporate or legal persons. The IAA has not provided any other basis in the AIE regulations or otherwise for the redaction of this information and therefore I direct release of any aircraft registration numbers relating to corporate or legal persons.
33. I also note that the complainants were able to include the registration numbers in their complaints because the aircraft in question were flying so low as to enable their identification by the complainants themselves, in one case with the aid of binoculars. If these aircraft were flying so low as to enable any person to identify their registration numbers, it can be argued that this information was already in the public domain. This in turn means that the registration numbers cannot and do not constitute confidential information that can attract any protection, either in the AIE Regulations or otherwise. If the viewers of these aircraft could identify their registration numbers, they were equally able to discover their ownership details by viewing the IAA’s aircraft register and, should they so wish, to share that information with others. Accordingly, it is difficult to see how this information can be considered to be confidential.
34. Finally, even if the IAA had provided a sufficient legal basis for the redaction of the above information, it neglected to consider whether the public interest in disclosure outweighed the interest in refusal, as it is required to do under article 10(3) of the AIE Regulations.
Redaction of name of entity in one complaint
35. As noted above, in one of the complaints, reference is made to an entity that had been contacted by the complainant. The name of this entity has been redacted by the IAA without explanation or reference to the AIE Regulations. It is clear from the text of the complaint that this is not a reference to a natural person. I note that a communication was sent from this Office to the IAA on 18 August 2023, informing the public authority of the receipt of this appeal and inviting it to make submissions. That invitation to make submissions was explicitly stated as the final opportunity for the public authority to explain and justify its decisions on the specific information/records at issue in this appeal. The submissions made to this Office on 4 October 2023 make generic references, as stated above, to “confidentiality” and “privacy interests” but with no basis in law, either in the AIE Regulations or in any other legal source. As the IAA has had ample opportunity to provide a legal basis by which it would be entitled to redact this information but has failed to do so, I will direct release of this information.
Searches for further information
36. I note that the IAA has asserted in its schedules of complaints that there are no records of any further action taken after the assignation of complaints to a flight operations inspector, and in one instance to a manager as well. However, in its correspondence with the appellant and with this Office, it has provided no details in respect of the searches it undertook to locate and identify this information. I consider that it is not unreasonable for the appellant to expect that information of this nature would be held by the IAA. Evidence of adequate searches for environmental information that is asserted not to exist by a public authority is a requirement of article 7(5) of the AIE Regulations. Accordingly, I am of the view that the appropriate course of action in relation to this matter is that the IAA conduct a thorough review in respect of this element of the requested information and explain to the appellant in a fresh internal review decision the steps it took to locate and identify it. As an aid to the IAA in this matter, it is reminded that the evidence in "search" cases generally consists of the steps actually taken to search for information along with miscellaneous other information about the records management practices of the public authority insofar as those practices relate to the information in question. Matters it should consider in its search and explain to the appellant include the following:
a. Confirmation, if applicable, that the information requested is still not held by, or for the IAA and the reasons therefor:
b. Details of guidelines, practice, procedures and arrangements in relation to the storage, archiving, retention and destruction of the type of information sought in this request, if applicable;
c. An outline of exactly which areas within the IAA that were searched for the information;
d. A description of all searches conducted including details of the files searched and the search methods used (e.g. electronic, physical, by name, by date, by key word, by reference number etc.);
e. Evidence of consideration of anywhere else in the IAA where such information might be located (as opposed to ought to be located), and a description of any searches which were conducted of files in such areas with a clear outline of the files looked at;
f. Evidence of consideration of whether relevant records may have been misfiled/misplaced;
g. A description of the searches carried out to cover the possibility of misfiled/misplaced records.
Telephone and Postal complaints
37. The IAA has explained to the appellant that it does not accept complaints made by telephone relating to aircraft noise, does not record telephone conversations and therefore has no records of such complaints made by telephone. In submissions to this Office it added that it has no records of complaints made by post. I am cognisant of the possibility that the IAA has a policy of receiving complaints only by email. However, as pointed out by the appellant in submissions to this Office, it would be considered bizarre for an entity such as the IAA not to record information received by telephone relating, for example, to an emergency situation such as a plane crash. It would be equally unusual, in my view, for the IAA not to retain any complaint made by post. Accordingly, I am of the view that the searches that the IAA has been requested to undertake in the above paragraphs should include a search for any records of complaints made by telephone and by post and that the result be conveyed to the appellant in the fresh internal review decision it will be directed to issue to the appellant. If the IAA should have a policy in regard to the receipt of complaints, whether by email, telephone and/or post, this should also be provided to the appellant.
38. In a similar manner to the way in which the complaints were released to the appellant, the second part of the appellant’s request was dealt with by way of limited information in a column in the second version of the schedule of complaints, provided with the internal review decision. The appellant sought access to follow-up reports in relation to the relevant complaints. No copies of reports or other records relevant to this part of the request held by the IAA were provided to the appellant. Accordingly, when carrying out a new internal review process, the IAA should carry out searches for any information held by it that is relevant to this part of the request and should consider whether this information should be released to the appellant under the provisions of the AIE regulations.
39. The IAA in its submissions states that the names of IAA officers assigned to deal with the complaints was redacted to uphold privacy interests. Once again, the IAA has not justified this with regard to the AIE regulations. After carrying out sufficient searches for any relevant reports or other documents as directed above, if the IAA wishes to redact any information from these records then it should ensure it provides sufficient reason for doing so and carries out a public interest test as required by article 10 of the AIE Regulations.
40. Should it be the case that the IAA does not hold any information relevant to part 2 of the appellant’s request, the IAA should explain this in its decision and justify it by explaining the steps taken to search for such information.
41. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Informatio,. I annul the decision of the IAA and direct as follows-
a. I direct release of the email complaints held by the IAA in their original format. The IAA should redact information relating to the identity of the complainant including name, email address, house name or number. I direct release of the town and county of the complainant whose details were redacted in the second version of the schedule of complaints but not in the first version of this document. I direct release of the registration numbers of the aircraft and of the name of the entity referred to in the complaint dated 15/04/2021.
b. As well as the above, I direct the IAA to provide the appellant with a new internal review decision in relation to complaints received by telephone or post and in relation to part two of the request. This should outline further searches for any additional information it may hold that is relevant to the request, namely reports of follow-up action taken by the officers assigned to the complaints for action and records of complaints that may have been received by telephone or by post.
42. 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