Decision
Right To Know CLG and Environmental Protection Agency
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-125751-P6M5Y9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-125751-P6M5Y9
Published on
Whether the EPA was justified in refusing release of information under articles 8(a)(i) or 9(2)(c) of the AIE Regulations.
13 December 2024
1. The EPA is an independent public body established under the Environmental Protection Agency Act, 1992. The other main instruments from which it derives its mandate are the Waste Management Act, 1996, and the Protection of the Environment Act, 2003 and Radiological Protection (Miscellaneous Provisions) Act 2014.
2. The EPA has a wide range of functions to protect the environment and it works closely with other organisations that carry out specific environmental functions, including local authorities. The EPA’s primary responsibilities include:
• Environmental licensing
• Enforcement of environmental law
• Environmental planning, education and guidance
• Monitoring, analysing and reporting on the environment
• Regulating Ireland's greenhouse gas emissions
• Environmental research development
• Strategic environmental assessment
• Waste management
• Radiological protection
3. The EPA’s Office of Environmental Enforcement (OEE) is responsible for the implementation and enforcement of environmental legislation in Ireland.
4. On 24 March 2022, the appellant requested access to an EPA dataset titled – ‘OEE Waste Crime Project Sites’ (with hyperlink provided to website – ‘EPA Ireland Catalogue’ and resource identifier listed as ‘AM.IE.EPA.WST_IllegalWasteSites’). The appellant included the website’s description of this dataset, as follows – “This is a points dataset of locations logged in Excel by Local Authorities in the OEE waste crime project. The Excel, held by OEE, has all the locations logged by LA’s. This GIS layer is just the locations that could be mapped with confidence.”
5. The appellant requested the data “in…
a) the format as logged in Excel, to include the illegal waste site locations and attributes including size, waste type etc (where available), and
b) in the GIS format created by the EPA based on the excel files (GIS layer is just the locations that could be mapped with confidence, so obviously may differ from the Excel documents).”
6. On 24 May 2022, the EPA issued its original decision, in which it identified and part-granted access to an excel sheet relating to the appellant’s request. While it released certain information therein, it refused access to a number of columns containing location data under article 8(a)(i) of the AIE Regulations and one (1) column containing information on the status of enforcement actions under article 9(1)(b) of the AIE Regulations.
7. The EPA noted that “the date for a decision was extended on 20 April 2022 to 24 May 2022 because of the complexity of the records involved”.
8. On 26 May 2022, the appellant sought an internal review of the EPA’s decision, noting its position that “the data as refused removes all transparency from the register of waste crime sites.” The appellant went on to note that “the actual AIE was for the mapping data, and by redacting the addresses, locations and shp files, the data is rendered effectively unusable by the public.” It further noted that “the EPA has removed the status of the enforcement actions, and we cannot see how this data is legally privileged on all (647) sites, as there would have to be current enforcement actions on all sites.”
9. The appellant stated the request for internal review “was based on the following factors in favour of open disclosure:
i. environmental data should be published by default, particularly locations of potential / actual pollution
ii. public interest in an open and transparent register of illegal waste sites;
iii. adjoining properties have a right to know, as could adversely impact their lands, water supplies, farm payments etc;
iv. location of environmental hazards is absolutely core to AIE process (threats to human health/safety and environment);
v. EPA approach to redacting environmental enforcement data undermines the local authority process of enforcement.”
10. The appellant added that “illegal waste sites can contaminate household wells and pollute rivers, so this data should be available to the public, to eNGOs, Lawpro, and community groups such as Rivers Trusts”.
11. Lastly, the appellant added that “by redacting the shp files, it is not possible to identify cumulative impact, where multiple illegal dumps/landfills are a risk in a specific location” and “for comparison, [that] the enforcement regime for legal dumps and historic landfills is open and transparent, and information on sites is readily available in a format that allows identification of the landowners/sites/locations”.
12. On 24 June 2022, the EPA issued its internal review decision wherein it affirmed its original decision to refuse location data under article 8(a)(i) of the AIE Regulations, however, it varied its decision in respect of the status of enforcement actions, deciding to “release the information where enforcement action was concluded” and “refuse the information where enforcement actions have not been completed”, under article 9(1)(b) of the AIE Regulations. This resulted in the release of 530 entries in this column, with the content of 117 remaining entries being marked ‘redacted’.
13. The EPA’s internal review decision went on to respond to the appellant’s contentions, listed above at i. – v., as summarised below.
14. The EPA confirmed that the dataset referred to by the appellant “is not contained in a “register” and it is not data which has any formal standing under legislation [and] therefore, it is very different to other formal registers such as lists of historic landfills or licensed facilities which are required to be maintained under legislation.”
15. The EPA stated that “while redacted data includes location information, this does not equate to “locations of potential/actual pollution” and “it does not give a representative or definitive list of illegal waste sites around the country.” The EPA further stated its opinion that “publication of such information would not be in the public interest because, apart from the fact the redacted information is personal information or legally privileged, to put partial or incomplete information into the public domain would be misleading to the public”, adding that the EPA itself has not sought to put this data into the public domain for these very reasons.
16. In relation to the appellant’s contentions that the public, including adjoining property owners and other groups, who could be adversely affected by the environmental hazards concerned, have a right to know the information, the EPA states that the redacted data was provided to the EPA by local authorities and that “if any threat of environmental pollution exists due to waste activities, Local Authorities have obligations to take appropriate action, [including] a responsibility to raise these issues directly with the persons concerned.”
17. On 28 June 2022, the appellant brought an appeal to my Office.
18. I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review I have had regard to all submissions made by the appellant and the EPA in this matter. Those submissions contained factual evidence, opinion evidence and submissions on this evidence. I have also examined the contents of the record at issue. 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’);
• The Aarhus Convention – An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• the decisions of the Court of Justice of the European Union (CJEU) in C-619/19Land Baden-Württenberg v DR and Case C-234/22 Roheline Kogukond MTÜ and Others v Keskkonnaagentuur;
• Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the GDPR); and
• The Charter of Fundamental Rights of the European Union (the Charter)
What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
19. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
20. The appeal brought to my Office dated 28 June 2022 stated that “we would like to appeal the refusal by EPA to release locations of illegal dumps (in the dataset attached) … In particular GIS data and shp files are redacted, which means [the] public have no way to see locations / scale of illegal dumps”.
21. The EPA, in its original and internal review decisions identified and part-granted access to an excel sheet which contained 647 rows of data, each appearing to relate to an individual site location, described by the EPA as “Illegal Waste Sites”. The copy of the excel sheet released to the appellant contained no visible omissions. In an accompanying schedule of records, the EPA set out a total of seventeen (17) distinct ‘records’ and explained which records had been granted/part-granted and which had been withheld. Each record granted/part-granted corresponded with a column of data in the released excel sheet.
22. During the course of this review, the EPA provided this Office with a copy of the excel sheet released to the appellant at internal review stage (the released excel sheet), which comprised a total of thirteen (13) columns (A-M) and a copy of the original, unredacted excel sheet (the complete excel sheet), which comprised a total of twenty-eight (28) columns (A-AB).
23. As noted above, the released excel sheet contained no visible omissions, other than those records listed as withheld, however the complete excel sheet indicated that some additional columns of data (Q-AB) had also been withheld from the released excel sheet. These columns are:
i. Column Q – WERLA_Region
ii. Column R – TCSA_Note
iii. Column S – RefSys
iv. Column T – X_ITM
v. Column U – Y_ITM
vi. Column V – Distance
vii. Column W – ImageChecked
viii. Column X – Info_imagery
ix. Column Y – Comments
x. Column Z – Duplicated
xi. Column AA – Validation
xii. Column AB – Shape *
24. The investigator assigned to this case highlighted to the EPA the differences between its schedule of records and the two excel sheets.
25. The EPA explained, in relation to the twenty-eight (28) columns (A-AB), columns A-Q related to data submitted to the EPA by local authorities. In relation to column Q, it explained that “WERLA” means Waste Enforcement Regional Lead Authorities, of which there are three (3) – Connacht-Ulster, Eastern Midlands and Southern Regional. The EPA acknowledged that this column appeared to have been omitted in error from the released data and stated that it could in fact be released to the appellant. I expect the EPA to release that information, in line with its correspondence with this Office.
26. The EPA went on to explain that columns R-AB contained the “Shape File GIS Information”. This was listed as one (1) record on the original schedule of records, and it being withheld, was not listed on the released excel sheet. The EPA clarified that columns R-AB were created by the EPA “during the analysing of the data to assess the reliability of the data points as part of the geospatial analysis.”
27. In relation to columns S, V, W, and X, the EPA stated that the information could be released to the appellant. I therefore expect the EPA to also release that information.
28. In relation to column R, the EPA stated that it “does contain some information which could identify a person”, however went on to confirm that the “EPA is happy to release information in this column that would not lead to the identification of anyone, for example [entries listed as]
29. The EPA did not provide any commentary in relation to columns Z, AA, and AB and therefore this Office considers it to be the case that this information remains withheld.
30. Having regard to the appellant’s statement of appeal and having examined the complete excel sheet, I am satisfied that the scope of this review is confined to all location data withheld – that being information contained in ten (10) columns of the complete excel sheet regarding the 647 rows listed on the released excel sheet. These columns are:
i. Column B – Site_Location_address
ii. Column C – Easting_Grid_Reference
iii. Column D – Northing_Grid_Reference
iv. Column R – TCSA_Note
v. Column T – X_ITM
vi. Column U – Y_ITM
vii. Column Y – Comments
viii. Column Z – Duplicated
ix. Column AA – Validation
x. Column AB – Shape *
31. The EPA refused access to this information under article 8(a)(i) of the AIE Regulations.
32. It is clear from the comments of the Court of Appeal inRedmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal. A review by me is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.
33. Accordingly, I consider it appropriate to examine the applicability of an additional exemption raised during the course of this review, which is article 9(2)(c) of the AIE Regulations, notwithstanding the fact that the provision was not originally relied upon by the EPA in its internal review decision.
34. This review will therefore consider whether the EPA was justified in refusing release of the above information under articles 8(a)(i) or 9(2)(c) of the AIE Regulations.
35. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the information and the extent to which I can describe certain matters in my analysis is limited.
36. The EPA originally refused to release location data as requested by the appellant on the basis of article 8(a)(i) of the Regulations. In its original decision, the EPA submitted that the confidentiality of the records in question is otherwise protected by law under Section 37(1) of the Freedom of Information Act 2014 and furthermore under the Data Protection Acts 1988 to 2018; the General Data Protection Regulation (EU) 2016/679; the European Convention on Human Rights; and the Irish Constitution. In arriving at its decision, the EPA submitted that it had regard to the provisions of Article 10 of the Regulations and that “... on balance, the public interest in this case is best served by withholding this information as its release could breach the rights of privacy of an individual.”
37. In submissions to this Office dated 3 August 2022, the EPA provided some background concerning the information that is the subject of the appellant’s AIE request. The EPA submitted that in December 2019, the Department of Communications, Climate Action and Environment (the Department) wrote to the EPA requesting that a study be carried out into the nature and extent of waste crime in Ireland (commonly referred to as the waste crime project) and that part of this work “entailed gathering information and data from local authorities on the nature and scale of unauthorised waste activity”, however that the EPA “has not, as yet, published any report or findings arising from this study.”
38. On 27 April 2023, this Office wrote to the EPA and outlined some key questions or issues regarded as particularly relevant based on an initial examination of the case file, and provided the EPA with an opportunity to make further submissions.
39. Firstly, the investigator asked the EPA to explain, with reference to the hyperlink and resource identifier included in the appellant’s original AIE request, the circumstances as to how the EPA dataset in question may be available from this access point. In response, the EPA provided a copy of a map to this Office which it contends was created temporarily using a GIS Layer to look for any trends from the data which is the subject of this appeal. The EPA advised that the static map had been published on the EPA website in error from the internal IT system it sat on and was available for a short period of time at the referenced hyperlink which the requester had sight of. The EPA further explained that as the map was static (i.e. just an image), viewers could not click on specific locations. The EPA submitted that the reason the map should not have been published was because the analysis of the data was being carried out at the time and was not completed and that “as soon [as] the EPA became aware that it was published, it was removed from the website and will not ever be re-published.”
40. The EPA submitted that the data in question does not specifically relate to the “locations of illegal dumps” (as described in the appellant’s statement of appeal), but relates to certain locations (as reported by local authorities) where unauthorised waste activity had allegedly taken place.
41. The EPA submitted that the data range requested from local authorities was for “unauthorised sites where significant unauthorised waste disposal activity was operational or which were discovered during the period 2010-2019.” However, it went on to explain that the extent of the data submitted varied across the local authorities and that very few local authorities could provide this range due to factors including, the unavailability of files and staff changes.
42. The investigator asked the EPA whether the complete excel file, as provided to this Office, contained the whole of the data provided by local authorities to the EPA for the purposes of the project. The EPA stated that it did not; commenting that there were originally 2,150 lines of data submitted as part of this project from 30 local authorities. It went on to explain that “grid references were missing for a large number of entries and the EPA needed grid references to conduct the geospatial analysis… therefore, data provided by local authorities without location information was unusable and could not be included in the analysis.”
43. The EPA submitted that the intent in compiling the information in question “was not to categorically document the extent of all illegal dumps around the country, but instead, to attempt to perform a basic geospatial analysis to look for any trends identifiable which would be of use in undertaking a national assessment of waste crime.” It submitted that “the data provided the locations where some alleged activities may have taken place… However, the data submitted was not validated beyond this as the EPA does not have access to information to validate it.”
44. The EPA submitted that it “does not consider that the dataset represents a full and representative picture of the location of any unauthorised waste sites around the country, and it does not intend to publish such location data itself under the waste crime project.” The EPA argued that it must protect the personal information of those listed in the data because the information is incomplete, not validated, is inaccurate and cannot be stood over”, concluding that it would be “negligent” and “misleading” on the EPA’s part to release the personal information which would identify anyone “as it would be release to the world at large and would not be in the public interest.”
45. The EPA submitted that in the case of certain sites, the geo coordinates can often readily identify an individual farm or household. It explained that in some of these cases the reports made by local authorities refer to alleged rather than proven illegal activity and in many cases the data provided by the local authorities is incomplete or inconsistent. It argued therefore, that the EPA “does not currently have the information easily available to identify those sites where sensitive personal data could readily be inferred from the geo coordinate information.” It went on to explain that “gathering and validating such meta data would be a significant piece of additional work” adding that “this problem was not anticipated before the data request was issued… and for this reason, the EPA’s preference is to delete this information from its systems.”
46. The investigator asked the EPA to confirm whether there would be scope to release the location data in respect of the 530 sites where it was confirmed at internal review stage that “enforcement actions are concluded”. In response, the EPA submitted that it cannot release this information, explaining that “in many cases these sites may not been prosecuted or even subject to court action and simply represent locations where illegal dumping has been alleged.” Furthermore, the EPA contended that it does not know the outcomes of any of the sites where enforcement action was taken and concluded, “e.g. if someone was found guilty or innocent”. It submitted therefore, that it is “concerned that publication of [location data] under these circumstances would damage the good name of individuals against whom no wrongdoing has been proved.”
47. The EPA submitted that “the data was collected for a point in time and is not up to date” and also that “since the time of reporting, investigations and further enforcement action may have been taken by the relevant local authority.” Furthermore, the EPA contended that persons located at such dwellings/businesses/farms may have had no involvement in the reported alleged activities. In addition, it submitted that some of the sites listed in the data may have changed ownership due to the time period involved (2010 to 2019) and as such, “innocent persons may be in situ now at a site where waste crime allegedly took place previously [and] could be perceived as criminal[s].”
48. The EPA submitted that “the appellant may be under the misapprehension that this data is collected on an ongoing basis” and it argued that “it was collected on a once-off basis, was deemed to be incomplete, invalidated and of poor quality by the EPA and will not be used for reporting of any kind”.
49. The EPA submitted that the location data can lead to the identification of the landowner (of individual domestic dwellings, farms and commercial sites) and, “therefore all location data is being refused under article 8(a)(i) [of the AIE Regulations].” In support of this position, the EPA cited Article 4(1) of the General Data Protection Regulation which defines “personal data” as “any information relating to an identified or identifiable natural person” and the Data Protection Act which states that such data means “information relating to … an identifier such as a name, an identification number, location data or an online identifier.”
50. The EPA also cited Article 3(1) of the Law Enforcement Directive which defines “personal data” as “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data , an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.” The EPA also pointed to paragraphs 32, 47 and Article 7(2) of the Law Enforcement Directive and the responsibilities of competent authorities to ensure that personal data which is inaccurate, incomplete or no longer up to date is not transmitted or made available.” Furthermore, the EPA argued that, in accordance with Article 4 of the above Directive, it is obliged to erase inaccurate personal data.
51. The investigator requested the EPA to provide a copy of any data sharing agreement in place between the EPA and the local authorities for the purposes of the project. The EPA stated that a data sharing agreement was not deemed necessary and referenced Section 63 of the Environmental Protection Agency Act 1992 as amended which provides that: "The Agency may request a local authority to furnish, within a specified period, to it, information in relation to the performance by the authority, either generally or in a specific case, of a statutory function of that authority in relation to environmental protection and the authority shall comply with such a request.” The EPA cited the statutory function of local authorities under Section 22 of the Waste Management Act, to identify and risk assess waste sites within their functional areas.
52. The investigator also requested the EPA to clarify the outcome of the ‘Waste Crime Project’, i.e. in what form the decision was made “not to pursue or publish a report from the waste crime project” as indicated in the EPA’s submissions. In response, the EPA submitted that a presentation was made to the EPA Board of Directors on 18 October 2022, at which time, “the EPA Board decided not to proceed with publishing a report, as a reliable assessment of the cost of waste crime in Ireland could not be made taking into account the difficulties which had been encountered in attempting to gather consistent waste site data from across the local authorities.” The EPA also submitted that the Department was informed of this decision at a National Waste Executive Steering Committee (NWESC) meeting on 27 October 2022.
53. The investigator then highlighted to the EPA the following statement, which she noted, had continued to appear on the EPA’s website – “In 2020, the EPA commenced a study into the nature and extent of waste crime in Ireland, which will report on the scale, costs and impact of waste crime and assess the extent of illegal dumping over the last 10 years.” In a response to this Office dated 3 July 2023, the EPA submitted that “this text was added when the project was ongoing… [that] this should have been removed when the decision was made not to publish a report… [and that] this was an oversight.” The EPA went on to note that it “will update this section of the website once the Commissioner has made his decision [on this appeal].”
54. On 2 February 2024, the investigator wrote again to the EPA to inform it of her view, in light of the EPA’s submissions to this Office, that the provisions of article 9(2)(c) of the AIE Regulations may be relevant to the information at issue in this case, in particular that it may concern “unfinished documents or data”.
55. On 14 March 2024, the EPA provided further submissions to this Office, wherein it outlined that article 9(2)(c) does apply to the dataset which is the subject of the request, “as it is unfinished, incomplete, inaccurate and unvalidated data and could not be used for the purpose for which it was collected i.e. to produce a Waste Crime Report”. It submitted that “the dataset relevant to this AIE request was unfinished, incomplete, of no scientific value and unusable.”
56. The EPA submitted that the public interest served by refusal of the information under article 9(2)(c) outweighs the public interest served by disclosure of the information at issue for the reasons outlined in its previous submissions concerning refusal under article 8(a)(i), including that, “for the EPA to put unvalidated, partial and incomplete data into the public domain would be irresponsible and would be misleading to the public”.
57. The EPA submitted that, as the hyperlink and resource identifier referenced in the original AIE request “refers to the Waste Crime Project…which was never or will never be reported on, it is [the EPA’s] intention to delete this page.”
58. The EPA’s latest submissions also proffered the following information:
“In a separate GIS exercise, the EPA has used two elements of the data in question i.e. the eastings and northings co-ordinates, in a proof of concept exercise to investigate if it was possible and useful to produce an illegal waste risk map for Local Authorities ... The ‘Illegal Waste Risk Map (BETA)’ model was made live on the EPA portal in early 2024 [external-link https://gis.epa.ie/LatestReleases/Release/25 | data release page here ] … Please be advised that the eastings and northings have not been released to the public and cannot be accessed or viewed from the model. The same issues with this dataset (eastings/northings) exist, it is an incomplete national dataset which is inaccurate and unvalidated.… As previously stated, the EPA is not producing a report on the dataset relevant to the AIE request and this dataset is not going to evolve i.e. the excel file will not change/be added to.”
59. It is noted above that the EPA appear to have used two elements of the data at issue in this case (Column C – Easting_Grid_Reference and Column D – Northing_Grid_Reference) as part of the above beta model to examine the percentage probability of illegal waste activity occurring in an area, based on a range of risk factors. However, it is my understanding that the beta model and associated predictive risk map does not identify any individual site locations, unlike the overall data at issue in his case.
60. On 19 April 2024, the investigator wrote to the appellant, providing a comprehensive summary of the submissions received by the EPA, including its position that in addition to article 8(a)(i), article 9(2)(c) of the AIE Regulations also applies to the requested information and that, in its view, the public interest in release does not outweigh the public interest in upholding refusal. The appellant provided submissions to this Office on 23 April 2024.
61. With reference to the “error” made by the EPA in mistakenly publishing a static map on its website, the appellant submitted that this is irrelevant. It submitted that the AIE request is for the shp file (or other GIS data) used to generate this map. The appellant submitted that the context to which lead to the creation of the data is “interesting… but not relevant to AIE request”.
62. With reference to the EPA’s argument that the data in question does not specifically relate to the “locations of illegal dumps”, the appellant also submitted that this is irrelevant. He argued that the AIE request is for the EPA dataset titled ‘OEE Waste Crime Project Sites’ (with hyperlink provided to website – ‘EPA Ireland Catalogue’) and resource identifier listed as ‘AM.IE.EPA.WST_IllegalWasteSites’. The appellant submitted that “naming conventions used by applicant and/or EPA have identified the relevant data, no matter what it is called”.
63. In response to the EPA’s view that “the appellant may be under the misapprehension that this data is collected on an ongoing basis”, the appellant submitted that it is under no such misapprehension. It submitted that, “The request is for a single dataset, in two formats - the raw data, and the shp file used to generate a map (later removed from EPA website). If the applicant thought there was an ongoing programme to generate this data, the applicant would have requested details on this programme and related data via the AIE. This request is for a one off data aggregation project. Obviously [the appellant] could send an AIE to every Local Authority asking for the data they provided to EPA, but this would be administratively wasteful (as EPA already aggregated the data).”
64. The appellant submitted that, “… [it is] not requesting location data of individual domestic dwellings, farms and commercial sites. The request is for environmental location data. Obviously the locations have to be somewhere, and that might be domestic, commercial, local authority, semi state, farm, bog, forest, quarry, or any other location. EPA is making a spurious link to illegal waste sites and land ownership”. It submitted that the request is not for personal data; it is for locations of a specific record named by EPA as "IllegalWasteSites".
65. The appellant noted that the EPA cited the statutory function of local authorities under Section 22 of the Waste Management Act, to identify and risk assess waste sites within their functional areas. It submitted that this suggests that both EPA and local authorities would be subject to the AIE Regulations for release of location data collected under the Waste Management Act.
66. The appellant noted that a presentation was made to the EPA Board of Directors on 18 October 2022 and queried whether the EPA could confirm details of this presentation and provide a copy to this Office “as it may contain further details relevant to the case”. A copy of this presentation was not requested by this Office, however, I would note that it is open to the appellant to request this information from the EPA if he so wishes.
67. The appellant submitted that work on the dataset is completed as of 2022, so there is no reason not to release data / map. It noted the EPA’s confirmation that "this dataset is not going to evolve i.e. the excel file will not change/be added to".
68. The appellant noted that the EPA’s preference is to delete this information from its systems. It submitted that, “In effect, the EPA are saying where they do not like a dataset, or cannot stand over it, they could delete it to circumvent [the AIE Regulations]”. It also submitted that the EPA have the opportunity under the AIE Regulations to add context to any release, within the decision letter, which it submitted allows the EPA to flag any records they wish as "unvalidated, partial and incomplete data".
69. The appellant noted that the EPA repeatedly referenced that "enforcement investigations by Local Authorities are maybe ongoing”. In this regard, it submitted that this is not a valid reason to refuse an entire dataset. The appellant submitted that, “If the EPA is concerned about natural persons living at the location of the sites listed in the data, they would actively disseminate the data, so those persons are made aware of potential historical illegal waste on their lands. The best example is someone on or adjacent to the land who unknowingly sinks a well into an illegal historic dump. It is reckless to redact such sites, where there is even a risk to public health of the locations remaining secret.” In conclusion, the appellant submitted that, “Actual public health issue is more important than the EPAs perceived privacy concerns”.
70. The description of the information requested, as contained in the appellant’s original request, was verified by the investigator as per the website details provided. The dataset titled “OEE Waste Crime Project Sites”, also named “Local Authority Ground Truth Data for Illegal Waste project” is defined on the particular EPA website as follows:
“This is a points dataset of locations logged in Excel by Local Authorities in the OEE waste crime project. The Excel, held by OEE, has all the locations logged by LA’s. This GIS layer is just the locations that could be mapped with confidence.”
71. The appellant’s request is for a copy of this dataset, in two formats – the raw data, and the shp file used to generate a map. The EPA explained that a static map created using GIS layer data was published in error from the internal IT system it sat on and was available for a short period of time at the referenced hyperlink. It is acknowledged by both parties that the map was later removed from EPA website. The excel sheet was not published; however, some of its contents were released to the appellant in response to his AIE request.
72. It is known that, in 2020, the EPA’s National Waste Enforcement Team commenced a project to study the nature and extent of waste crime in Ireland. This team is part of the OEE and has a national remit in relation to waste regulation, working with local authorities, the Waste Enforcement Regional Lead Authorities (WERLAs) and other stakeholders to monitor trends in the waste sector, and to implement measures to improve regulatory compliance. The terms of reference for this project are contained in correspondence from the Department of Communications, Climate Action and Environment (now Department of Environment, Climate and Communications) (the Department) dated 6 December 2019 which requested that the EPA undertake a study into the nature and extent of waste crime and in particular the ‘cost’ of waste crime to the state.
73. Local authorities have significant powers under waste legislation which enable them to tackle illegal waste activity. As part of the above project, the EPA team requested data from each local authority concerning “unauthorised sites where significant unauthorised waste disposal activity was operational or which were discovered during the period 2010-2019”. The EPA has stated that the intended purpose of the data request was in order to perform “a basic geospatial analysis to look for any trends identifiable which would be of use in undertaking a national assessment of waste crime”. It also emphasised to the appellant and to this Office that “while redacted data includes location information, this does not equate to “locations of potential/actual pollution” and “it does not give a representative or definitive list of illegal waste sites around the country”.
74. The EPA noted that it performed some analysis of the data returns from local authorities before determining that the extent of data quality issues, regarding accuracy, completeness, and reliability, rendered the data in its entirety unusable. The EPA confirmed that a decision was taken in October 2022 by its Board of Directors “not to proceed with publishing a report, as a reliable assessment of the cost of waste crime in Ireland could not be made taking into account the difficulties which had been encountered in attempting to gather consistent waste site data from across the local authorities.” As such, the EPA’s “Waste Crime Project” appears to be concluded or completed.
75. Article 8(a)(i) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law. This provision seeks to transpose Article 4(2)(f) of the AIE Directive, which in turn is based on Article 4(4)(f) of the Aarhus Convention.
76. Article 9(2)(c) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. This provision transposes Article 4(1)(d) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention. This exception is class-based, which means that it is engaged if the information in question falls within its scope. It is not necessary to show that disclosure would have any particular adverse effect in order to engage the exception.
77. Articles 8(a)(i) and 9(2)(c) must also be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information. Article 10(6) of the AIE Regulations states that where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.
78. As outlined above, the EPA’s current position is that release of the information at issue should be refused on the basis of the grounds for refusal contained at articles 8(a)(i) and 9(2)(c) of the AIE Regulations. In the circumstances of this case, I consider it appropriate to consider article 9(2)(c) of the AIE Regulations first, before proceeding to consider article 8(a)(i), if necessary.
Article 9(2)(c) of the AIE Regulations
79. Article 9(2)(c) provides that a public authority may refuse to make environmental information available where the request concerns “material in the course of completion, or unfinished documents or data”.
80. Article 10(4) makes it clear that a restrictive approach is necessary, namely that grounds for refusal of a request must be interpreted on a restrictive basis, having regard to the public interest served by disclosure. The decision of the CJEU in Case C 619/19 ,Land Baden-Württemberg v DR (Land Baden-Württemberg) also makes it clear that “…a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon” and that “the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical” (paragraph 69).
81. The terms “material in the course of completion” and “unfinished documents or data” are not defined in the AIE Regulations, AIE Directive, or the Aarhus Convention. However, the decisions of the CJEU in Land Baden-Württemberg, and Case C-234/22 ,Roheline Kogukond MTÜ and Others v Keskkonnaagentuur (Roheline Kogukond MTÜ) , provide some guidance on the exception.
82. WhileLand Baden-Württemberg more specifically concerned the internal communications exception, the Court indicated that both the internal communications exception and the exception concerning material in the course of completion and unfinished documents or data are “intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions” (see paragraph 44).
83. InRoheline Kogukond MTÜ , which dealt with the question as to whether data on the location of permanent sample plots for a statistical forest inventory were to be classified as material in the course of completion or unfinished documents or data, the Court referred to the decision inLand Baden-Württemberg . In considering the material in the course of completion and unfinished documents or data exception, it noted at paragraph 38:
“Although the concepts of ‘material in the course of completion’ and ‘unfinished documents or data’ are not defined by [the AIE Directive], it is apparent from the explanations relating to Article 4 of the Proposal for a Directive of the European Parliament and of the Council on public access to environmental information presented by the Commission on 29 June 2000 (COM(2000) 402 final) (OJ 2000 C 337 E, p. 156) that the purpose of that exception is to meet the need of the public authorities to have a protected space in which to pursue internal considerations and debates (see, to that effect, judgment of 20 January 2021,Land Baden-Württemberg (Internal communications ), C 619/19, EU:C:2021:35, paragraph 44). The Court has also held that, unlike the ground for refusing access provided for in point (e) of the first subparagraph of Article 4(1) of Directive 2003/4 relating to internal communications, that provided for in point (d) of the first subparagraph of Article 4(1) of the directive relates to the preparation or drafting of documents and is therefore of a temporary nature (see, to that effect, judgment of 20 January 2021,Land Baden-Württemberg (Internal communications ), C 619/19, EU:C:2021:35, paragraph 56).” (Emphasis added)
84. The first question I must consider is whether or not article 9(2)(c) of the AIE Regulations is engaged on the basis that the information at issue “concerns material in the course of completion, or unfinished documents or data”.
85. The EPA understands that article 9(2)(c) applies to the dataset which is the subject of the appellant’s request as it is “unfinished, incomplete, inaccurate and unvalidated data” and could not be used for the purpose for which it was collected. The EPA has not indicated which limb of the exception it considers to apply to the information. The appellant has also not specifically commented on article 9(2)(c) of the AIE Regulations, however he does contend that the excel sheet is “finished” as no further work on it is to be carried out.
86. The Aarhus Guide states that “the expression ‘in the course of completion’ relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared.” This phrase was considered by the Aarhus Convention Committee in ACCC/C/2010/53 (United Kingdom). The Committee considered whether raw air pollution data collected from a monitoring station and not yet subject to “data correction” could be exempted from disclosure as “material in the course of completion”. The Committee considered that the raw data was itself environmental information and could not be considered to be “in the course of completion”. The Committee held that the data should be provided, and should the authority have any concerns about doing so, it should simply advise the requestor that the data had not yet been processed according to the agreed and regulated system of processing raw environmental data.
87. InRoheline Kogukond MTÜ , the information at issue concerned location coordinates of permanent sample plots used to draw up the Estonian statistical forest inventory. The CJEU noted that “the permanent sample plots, the location coordinates of which are requested…, are sampling units used for the periodic collection of data with a view to drawing up, by extrapolation, statistical reports on forest stands in Estonia and on land use and development. Those sample plots are located on the sides of 64-hectare square plots, chosen for their representative nature of the state of the forest and soils.” The CJEU held that “[t]he location coordinates of permanent sample plots used for the collection of data for drawing up a national statistical forest inventory cannot be regarded as documents in the course of completion or as unfinished documents or data when they relate to the state of the forest on a given date. It noted that “the fact that those sample plots are used to measure developments in the state of forest resources and soils in successive statistical forest inventories or other reports does not call that conclusion into question. To interpret it otherwise would be tantamount to allowing the exception…to be applied without any time limit, even though that exception is…of a temporary nature.”
88. In this case, I understand that the data at issue was being analysed or worked on around the time of the appellant’s request, such that article 9(2)(c) may well have been engaged at that point in time. However, it is clear that work on the dataset later ended, with the EPA concluding that the data could not be relied upon for reporting purposes, and thereby the project it was intended to inform was discontinued. Furthermore, the EPA in its submissions to this Office states that “the dataset is not going to evolve i.e. the excel file will not change/be added to”.
89. In my view, the clear statement of the CJEU is that the exception provided for in article 9(2)(c) can only apply temporarily. The EPA’s position is that “the data provide[s] the locations where some alleged activities may have taken place… However, the data submitted was not validated beyond this as the EPA does not have access to information to validate it.” The EPA also outlines that “gathering and validating such meta data would be a significant piece of additional work”. It appears to me, in the context of the overall project being discontinued, that there is little likelihood of such a validation exercise being undertaken at this point, and moreover, the EPA has indicated that its preferred approach is to delete the data.
90. The EPA has characterised the dataset as unfinished or in the course of completion, seemingly until such time as it chooses to delete the data from its system, following the conclusion of this appeal and unless disclosure is required under article 12(5)(c) of the AIE Regulations. Bearing in mind the obligation in article 10(4) of the AIE Regulations to interpret the grounds for refusal on a restrictive basis, I do not agree with the EPA’s categorisation of the data concerned. Similar to ACCC/C/2010/53 above, it is open to the EPA to add context to any release under the AIE regime to cover quality concerns with the requested information. There is no exemption in the AIE Regulations for data that a public authority considers to be unreliable.
91. In the circumstances of this case, the information is clearly not in the course of completion. Furthermore, where the EPA does not intend to “finish” the data, a conclusion that the data is “unfinished” would be tantamount to making the exception permanent, which is specifically not permitted by the judgment in Roheline Kogukond MTÜ .
92. Lastly, I note that the EPA referenced the Law Enforcement Directive (LED) and “the responsibilities of competent authorities to ensure that personal data which is inaccurate, incomplete or no longer up to date is not transmitted or made available.” The EPA also argued that, in accordance with Article 4 of the LED , it is obliged to erase inaccurate personal data. However, I note that the LED regime only applies in cases where the data controller is a ‘competent authority’ as defined by Section 69 of the Data Protection Act 2018 (‘the Act’), and the processing is done for ‘law enforcement purposes’ as defined by Section 70 of the Act. This is a faithful implementation of the LED. In this case, I do not believe that second step of this test is met.
93. Article 2(1) of the LED states: “This Directive applies to the processing of personal data by competent authorities for the purposes set out in Article 1(1).” Article 1(1) states: “This Directive lays down the rules relating to the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the safeguarding against and the prevention of threats to public security.” The EPA has clearly stated that the purpose of processing the data is to study the nature and extent of waste crime. This brings it outside the scope of the LED.
94. On the basis of the foregoing, I find that article 9(2)(c) does not apply to the information sought and that refusal is not justified under this provision. I will now go on to consider the EPA’s reliance on article 8(a)(i) of the AIE Regulations in respect of the dataset concerned.
Article 8(a)(i) of the AIE Regulations
95. When relying on article 8(a)(i) of the AIE Regulations a public authority must show that the information at issue is personal information relating to a natural person, who has not consented to its disclosure; that the personal information has an element of confidentiality; that the confidentiality of that personal information is provided by law; and that the disclosure of the information at issue would adversely affect that confidentiality. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
96. The EPA seeks to withhold the following ten (10) columns of information in their entirety, on the basis of article 8(a)(i) of the AIE Regulations:
i. Column B – Site_Location_address
: This column contains 646 location data entries and one (1) entry listed as “
ii. Column C – Easting_Grid_Reference : This column contains 647 numerical entries, purported to be easting grid references.
iii. Column D – Northing_Grid_Reference : This column contains 647 numerical entries, purported to be northing grid references.
iv. Column R – TCSA_Note
: This column contains 42 blank entries, 546 entries listed as “
v. Column T – X_ITM : This column contains 647 numerical entries, some of which can be observed to duplicate entries contained in ‘Column C – Easting_Grid_Reference’.
vi. Column U – Y_ITM : This column contains 647 numerical entries, some of which can be observed to duplicate entries contained in ‘Column D – Northing_Grid_Reference’.
vii. Column Y – Comments
: This column contains 645 miscellaneous text entries and two (2) entries listed as “
viii. Column Z – Duplicated : This column contains 647 numerical entries, comprising either “0”, “1”, “2” or “3”.
ix. Column AA – Validation : This column contains 647 numerical entries, comprising either “1”, “2” or “3”.
x. Column AB – Shape : This column contains 647 text entries, with each entry listed as “Point”.
97. The appellant’s position is that it is not seeking access to personal information or personal data, but rather “environmental location data”.
98. The AIE Regulations do not contain a definition for “personal information”. However, section 2 of the FOI Act defines personal information as information about an identifiable individual that either (a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual or (b) is held by an FOI body on the understanding that it would be treated by the body as confidential. The FOI Act details fourteen specific categories of information that is personal without prejudice to the generality of the foregoing definition, including at category (xiii), information relating to property of the individual. In addition, while article 8(a)(i) refers to “personal information”, it may be noted that both the AIE Directive and the Aarhus Convention refer to “personal data”. Article 4(1) of the General Data Protection Regulation (Regulation (EU)2016/679 – the ‘GDPR’) defines personal data as “any information relating to an identified or identifiable natural person (‘data subject’)”.
99. In the circumstances of this case, it is important to note that personal information is information about an identifiable individual. Where information may not, on the face of it, be about an identifiable individual, it may still be personal information if it allows the individual to be identified. An individual may not be named in a record, yet may still be identifiable.
100. It can be noted that ‘Column E – Landuse_type’, which was released to the appellant, consists of a breakdown, with counts as follows, for the types of sites involved:
• Null – 4
• Beach – 5
• Bog – 5
• Commercial - 1
• Commercial/Industrial Site – 131
• Farmland – 220
• Forestry – 17
• Grassland – 1
• Greenbelt – 3
• Industrial Site – 4
• Other – 75
• Quarry – 17
• Recreational – 15
• Residential – 90
• Roadside/Laneway – 13
• Rough Grassland – 1
• Waterway (Infill) – 6
• Wetland – 39
101. As article 8(a)(i) can only be relied on in relation to natural persons, it is difficult to understand the EPA’s justification for withholding the information in relation to certain sites, e.g. those listed as public amenity sites or commercial sites which clearly cannot be readily linked to an identifiable natural person. Accordingly, it appears likely that some information cannot be said to be personal information, with the required quality of confidence, relating to a natural person, as is necessary to engage article 8(a)(i) of the AIE Regulations. Accordingly, I am of the view that the EPA may have adopted a blanket approach to its refusal of all of the information at issue by claiming that article 8(a)(i) applied to all of the information concerned, regardless of its specific nature.
102. That being said, I am satisfied that at least some of the information at issue relates to “personal information” within the meaning of the FOI Act and similarly, information relating to an identifiable natural person, such that it constitutes “personal data” within the meaning of the GDPR. As part of its submissions to this Office, the EPA argued that site location addresses and grid references could lead to the identification of locations and thereby individuals connected with those locations. It also argued that the certain entries in the “Shape File GIS Information” columns (R-AB) could lead to the identification of persons. In this regard, I must bear in mind that it is not the function of my Office to disclose information, meaning that the detail that I can give about the content of the data is limited. However, based on my examination of the material concerned, I acknowledge that the withheld data, combined with local knowledge and other available information, may in some circumstances lead to the identification of individuals connected with the locations concerned. This is particularly true for entries which contain detailed address information, e.g. including house numbers, or include otherwise distinguishable descriptors, even in terms of the waste type details, such that the owner may be identifiable.
103. I therefore consider it appropriate at this stage to briefly set out the approach to personal data under the AIE Regime. The Commissioner has set this out in detail in recent decisions, OCE-135716-R4G8T1 and OCE-137000-X7Y9N3 ; these decisions should be referred to for a more detailed analysis of same.
104. As outlined above, article 8(a)(i) of the AIE Regulations seeks to transpose Article 4(2)(f) of the AIE Directive, which enables Member States to provide for refusal of a request where disclosure would “adversely affect … the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law” (my emphasis). The final paragraph of Article 4(2) states, referring to the predecessor to the GDPR: “Within this framework, and for the purposes of the application of subparagraph (f), Member States shall ensure that the requirements of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are complied with.”
105. In light of this, I consider that the reference to “personal information” in article 8(a)(i) of the AIE Regulations to be consistent with the meaning of “personal data” under the GDPR, a concept with which every public authority is now very familiar. It is clear from this final paragraph of Article 4(2) of the AIE Directive that the AIE regime is intended to interact harmoniously with the European data protection regime. In the same vein, Article 86 of the GDPR (read with Recital 154) permits the disclosure of personal data in accordance with information access regimes under EU or national law, where those regimes reconcile the right of access to information with the right to protection of personal data. This again indicates that the GDPR is intended to interact harmoniously with national and European regimes offering public access to information.
106. In Ireland, Article 86 of the GDPR is implemented by section 44(2) of the Data Protection Act 2018, which provides: “For the purposes of Article 86, personal data contained in environmental information may be disclosed where the information is made available under and in accordance with the [AIE] Regulations pursuant to a request within the meaning of those Regulations.” On one view, this could be considered to be a standalone ‘gateway’ for the disclosure of personal data under the GDPR, permitting disclosure of all personal data contained in environmental information pursuant to an AIE request. However, the CJEU has repeatedly confirmed that the legal bases for processing in Article 6 of the GDPR are exhaustive list of the cases in which processing of personal data can be regarded as lawful (Meta vs Bundeskartellamt Case C-252/21 , at paragraph 90;SCHUFA Holding and Others (Discharge from remaining debts) Joined Cases C-26/22 and C-64/22 , at paragraph 73).
107. In order to determine whether the confidentiality of personal data is protected by the GDPR, one must consider whether there is a lawful basis under Article 6(1) of the GDPR for disclosure. If there is a lawful basis for disclosure, the personal data may lawfully be disclosed and the confidentiality of the personal data is not protected by the GDPR. Conversely, if there is no lawful basis for disclosure, the personal data may not be disclosed and the confidentiality of the personal data is protected by the GDPR.
108. There are six lawful bases for processing personal data set out in Article 6(1) of the GDPR. It appears that the most relevant basis to consider is Article 6(1)(f), “necessary for the purposes of the legitimate interests pursued by the controller or by a third party.”
109. There are “three cumulative conditions” in order for processing to be lawful in accordance with Article 6(1)(f): “… first, the pursuit of a legitimate interest by the data controller or by a third party; second, the need to process personal data for the purposes of the legitimate interests pursued; and third, that the interests or freedoms and fundamental rights of the person concerned by the data protection do not take precedence” (Mircom International Content Management (M.I.C.M) Limited v Telenet and others Case C-597/19 , at paragraph 106). For convenience, this is known as the “legitimate interest test”.
110. In relation to the first condition, the CJEU has confirmed that a wide range of interests is, in principle, capable of being regarded as legitimate (see Joined Cases C-26/22 and C-64/22 at paragraph 76). Taking this into account, once a person has made a valid request for environmental information, I consider the first condition of the legitimate interest test is met.
111. Where the environmental information in question is or includes personal data, the only way in which the legitimate interest in receiving the environmental information can be met is by providing access to the personal data in question. Accordingly, the second condition of the legitimate interest test is met.
112. As a result, in practice, it is the third condition of the legitimate interest test on which public authorities must focus most of their attention. The third condition requires “the balancing of the opposing rights and interests at issue”, depending on the specific circumstances of the particular case (see Case C-597/19 , at paragraph 111).
113. In this context, the opposing interests will be, on the one hand, the right of the data subject to respect for privacy and protection of personal data and, on the other hand, the public interest in the disclosure of the environmental information at issue. This balancing exercise is almost identical to the balancing exercise that is required under Article 4(2) of the AIE Directive and article 10(3) of the AIE Regulations, where personal data is concerned. This means that, although as a matter of principle a public authority must carry out the balancing exercise in Article 6(1)(f) first and again (if needed) under article 10(3) of the AIE Regulations, in practice it is unnecessary for a public authority to go through the exercise twice because the analysis is the same.
114. To summarise, once a public authority is satisfied of the following matters, the public authority may be satisfied that the requester has a ‘legitimate interest’ in receiving the personal data pursuant to that request and that its disclosure is ‘necessary’ to meet that interest:
a) that an AIE request has been made,
b) that the requested information is environmental information,
c) that the environmental information is or includes personal data, and
d) that the data subject has not consented to the disclosure of the personal data.
115. The public authority must then weigh the rights of the data subject against the public interest in the disclosure of the environmental information. In weighing that balance, the public authority should consider the specific interests at issue. As with any other exception to release under the AIE regime, if the public authority concludes that the balance falls against release of the personal data, it should go on to consider whether the personal data may be separated from the other environmental information at issue, for example by means of redaction (see Article 4(4) of the AIE Directive and article 10(5) of the AIE Regulations).
116. In this case, I am satisfied that a valid AIE request has been made (this is not in dispute), and that the requested information is environmental information (this is also not in dispute). I also consider that at least some of the environmental information at issue includes personal data. As noted above, the EPA appears to have adopted a ‘blanket approach’ to its refusal of all of location data by claiming that article 8(a)(i) applied to all of the information concerned, regardless of its specific nature, which is not an appropriate application of this exemption. As such, I did consider whether the matter should be remitted to the EPA for a new internal review process (subject to article 10). Overall however, I believe that it is more efficient and appropriate for me to deal with the substantive issue of whether any of the information withheld is exempt from release under article 8(a)(i) at this stage.
117. Regarding the issue of consent, given the background to and nature of information in this case, it clearly cannot be said that any data subjects concerned have consented to the disclosure of their personal data. It is also clearly not possible to contact the data subjects in this matter.
118. Having determined the above, I am satisfied that the requester has a ‘legitimate interest’ in receiving any personal data at issue pursuant to an AIE request and that its disclosure is ‘necessary’ to meet that interest. I must go on to weigh the rights of the data subjects against the public interest in the disclosure of the environmental information.
119. In respect of the individuals’ interests in the protection of their personal data in this case, I note that location data does not fall under any of the special categories of personal data meriting higher protection (see Article 9, GDPR).
Factors in favour of disclosure
120. The appellant’s argument in favour of disclosure is that there is a significant public interest in knowing the locations of potential or actual pollution, in particular for adjoining property owners as “it could adversely impact their lands, water supplies, farm payments etc.” He contends that there is a risk to public health in not disclosing the information, citing an example of “someone on or adjacent to the land who unknowingly sinks a well into an illegal historic dump”. As regards the quality of the information, the appellant considers that the EPA should be able to place the dataset in context and add a proviso to disclosure.
121. I also consider that there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive, and the rights in Articles 11 and 37 of the Charter of Fundamental Right of the European Union.
Factors in favour of maintaining the exception
122. The EPA argues that while it is in the public interest to make environmental information available to the public, it submits that “it would be reckless to release incomplete information which the EPA cannot stand over”. The EPA believes that there is a likelihood that disclosure of the information would be harmful in its current form and furthermore that it does not hold the information that would be required to contextualise the dataset. For instance, the EPA submits that it has no means of discerning whether alleged activities are connected to individuals currently/previously residing at or owning the sites concerned, or whether enforcement activities may relate to those individuals or individuals unconnected with the sites. Moreover, it argues that many of the activities are simply “alleged”.
123. In favour of withholding the information at issue, I am mindful that the right to privacy has a constitutional dimension having been recognised as an unenumerated right under the Constitution, and of the strong protection afforded to privacy rights under the Freedom of Information regime and under Article 8 of the European Convention on Human Rights. I have also considered the data subjects’ interest in the protection of their personal data, taking into account the nature of the specific personal data at issue and the data subject’s rights under Articles 7 and 8 of The Charter of Fundamental Rights of the European Union. I also note that it is not possible to contact the data subjects regarding this appeal.
Balance of the public interest
124. The EPA has argued that the disclosure of the withheld information, in its view, would have a negative effect on individuals associated with the locations concerned. It also expresses concerns in light of data quality issues.
125. Whilst I accept that issues around data quality may lower the public interest in release of the information, the EPA has not identified any tangible adverse effects of the information being disclosed. Other than linking the data to enforcement actions, it is not clear to me how release would result in any adverse effect for individuals concerned. Moreover, it is difficult to see how release of the location data at issue would be harmful, given that the individuals against whom enforcement action has been taken, or should be taken, cannot be gleaned from the dataset. I note also that simply by performing an internet search on some of the site locations, it is clear that there is information publicly available concerning the activity, including the name and address of individuals prosecuted.
126. In contrast, the appellant has offered a strong public interest in disclosure of the location data, submitting that the location of environmental hazards is absolutely core to AIE process (threats to human health/safety and environment). I am mindful too that there is a general presumption in favour of disclosing environmental information and that there is a public interest in providing access to information which would contribute to a greater awareness of environmental matters.
127. Public interest considerations should always be relevant to the exception being relied upon, and to the specific nature of the request and of the withheld information. In this case, the data, notwithstanding perceived data quality issues, was obtained by the EPA from local authorities, concerning “unauthorised sites where significant unauthorised waste disposal activity was operational or which were discovered during the period 2010-2019”. I consider that the public interest in disclosure of information concerning the location of “unauthorised waste disposal activity”, or even “alleged” activity, outweighs the interest in preserving the privacy of relevant data subjects.
128. Based on the above, I have concluded that in the circumstances of this case, the balance of public interest is weighted in favour of disclosure. It follows therefore, that the EPA was not entitled to rely on article 8(a)(i) to withhold the information.
Conclusion
129. In light of the particular circumstances of this case, I decided that it would be appropriate to issue a draft decision to the parties and to invite their submissions on any additional point of fact, error of fact or error of law with reference to same. On 27 November 2024, a draft decision was provided to the parties.
130. The appellant responded on 30 November 2024. It acknowledges, as noted at paragraph 99 above, that an individual may not be named in a record, yet may still be identifiable and in this regard the appellant submits that it doesn’t dispute that some of the information requested is personal data.
131. The EPA provided submissions to my Office on 11 December 2024. It acknowledges, as noted at paragraphs 101 and 116 above, that a ‘blanket approach’ was taken by it in relation to all location data by claiming that article 8(a)(i) applied to all of the information concerned, regardless of its specific nature. In this regard, the EPA proposes to redact any data which specifically identifies residential dwellings prior to release of the record, noting at paragraphs 64 and 97 above, that the appellant is not seeking access to personal information.
132. While the appellant stated that it was not seeking access to personal information or personal data, its submissions over the course of this appeal were that the information sought was not personal information, but rather “environmental location data”. In its final comment on the draft decision, the appellant stated that it doesn’t dispute that some of the information is personal data, but did not specify what information it considered to come within this definition. Based on these submissions and having regard to the appellants original and internal review request, I am not satisfied that the appellant has narrowed the scope of his request to exclude any or all personal information. I am satisfied, that where the location data in the record is also personal data, it can reasonably be said to fall within the scope of this review and that it is appropriate for me to consider and direct release of all of the information sought in the original request.
133. My approach to any personal data or personal information in the record is as set out in my analysis above. In relation to the EPA’s proposal to now redact certain data which would pin point residential dwellings, I consider that this approach was open to the EPA in the processing of this request, however the provisions of article 10(5) were not applied by it. As set out at paragraph 116 above, I opted to deal with the substantive issue of whether any of the information withheld is exempt from release under article 8(a)(i) at this stage rather that remit to the EPA for a new internal review process.
134. My conclusion is that article 8(a)(i) cannot be relied on to withhold any of the information in the record, having found that the balance of public interest is weighted in favour of disclosure.
135. Having carried out a review under article 12(5) of the AIE Regulations, I find that refusal of the information requested is not justified under article 8(a)(i) or 9(2)(c) of the AIE Regulations. I hereby annul the decision of the EPA and I direct the release of the information sought.
136. 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.
Ger Deering
Commissioner for Environmental Information