Decision
Mr X, represented by Mr Y and Kerry County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0012
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0012
Published on
Whether the Council was justified in refusing access to certain details redacted from Enforcement file U411-08
In a request dated 7 March 2018, the appellant sought access to any environmental information in Enforcement file U411-08 in electronic format. On 5 April 2018, the Council issued a response suggesting that processing the request would require a significant amount of time and resources. In the circumstances, the Council sought to impose a fee of €180 and requested a deposit of 20% in order to proceed with the request. On 9 April 2018, the appellant applied for an internal review based on the "deemed refusal" of his request. In a decision dated 8 May 2018, the Council accepted that its original decision was a deemed refusal. The Council annulled the deemed refusal and granted the request in part, but it affirmed the decision to impose a fee of €180, albeit on the basis of making the environmental information available. The appellant made an appeal to my Office through a representative on 21 May 2018.
I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the Council and the appellant and to the following: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention; and also the text of the Aarhus Convention itself. I have also had regard to the relevant provisions of the Freedom of Information Act 2014 (the FOI Act), Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (the GDPR), the Data Protection Acts 1988 to 2018 (the DP Acts) and the Data Protection Act 2018 (the 2018 Act).
I note that the appellant argued in his internal review request that the Regulations do not permit a public authority to refuse to process a request pending payment of a fee. Article 15(1) allows a public authority to charge a fee "when it makes available environmental information". Moreover, under article 7(2) of the Regulations, a public authority is required to make the requested information available to an applicant within one month of the request "where appropriate". I accept that, where a fee is due, the requested environmental information need not be disclosed (other than in situ) until the fee is paid. However, the appellant is correct insofar as he suggests that a fee may only be charged in relation to environmental information that a public authority is making available. Thus, article 15(1) presupposes that a decision has been made to grant access to the information concerned in full or in part. Unlike section 27(5) of the FOI Act, invoking article 15(1) does not itself "stop the clock"; i.e. it does not extend the deadline for making a decision on the request even if the information need not be made available until after the fee has been paid.
In addition, I note that the Court of Justice of the European Union (CJEU) determined in Case C-71/14, East Sussex County Council v. Information Commissioner (available here ), contrary to previous decisions of this Office on the matter, that the charge for supplying environmental information may "encompass not only postal and photocopying costs but also the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request, which includes the time spent on searching for the information and putting it in the form required", provided that the total amount of the charge does not exceed a reasonable amount. However, the East Sussex ruling does not affect the requirement under article 15(2) that a schedule of fees be published before a public authority may charge a fee in the first instance. In this case, the Council responded to the appellant's request within the one month allowed but it is apparent from the response that it had not processed the request, i.e. that it had not made a decision to grant the request in full or in part subject to the payment of the fee that it sought to impose. I recognise that the existence of separate yet overlapping access regimes is a source of confusion for many public authorities. Nevertheless, the Council's ultimate decision to grant the request in part was untimely under article 7(2) of the AIE Regulations and the appeal fee will be refunded to appellant accordingly. I also note, however, that the Council ultimately accepted that its decision to charge a fee was not in compliance with article 15(2) and that it therefore agreed to make the requested information available to the appellant subject to the redaction of certain details under article 8(a)(i) of the Regulations. In light of the need to make redactions and due to the size of the file, access was granted in paper rather than electronic format.
As indicated above, the Council agreed during the course of the review to make the requested information available to the appellant without charging any fee, but it redacted certain details under article 8(a)(i) of the Regulations. The appellant was notified of the Council's revised position but indicated that he did not accept that the redactions were justified and that he therefore wished to proceed with his appeal. Accordingly, my review in this case is concerned solely with the question of whether the Department was justified in refusing access to the details redacted from Enforcement file U411-08, which has otherwise been made available to the appellant.
The grounds for refusal of a request for environmental information are set out in articles 8 and 9 of the AIE Regulations, but any proposed refusal is subject to the provisions of article 10 of the Regulations. Article 10(1) states: "Notwithstanding articles 8 and 9(1)(c), 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 Regulations requires public authorities to consider each request on an individual basis and to weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest. I take article 10(4) to mean, in line with the Minister's Guidance, that there is generally a presumption in favour of the release of environmental information. However, as discussed below, this is subject to the strong protection afforded to the right to privacy under European and Irish law.
The sole ground for refusal by the Council in this case is article 8(a)(i) of the Regulations. Article 8(a)(i) provides for the refusal of 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. Although article 8(a)(i) refers to “personal information”, both the AIE Directive and the Aarhus Convention in the corresponding exception to article 8(a)(i) refer to “personal data”. Article 4 of the AIE Directive provides that Member States shall ensure that the requirements of Directive 95/46/EC are complied with (Directive 95/46/EC has been repealed and replaced by the GDPR). Moreover, in Joined Cases C-92/09 and C-93/09, Volker und Markus Schecke GbR and Hartmut Eifert v Land Hessen (Schecke), available here, the CJEU stated that "[n]o automatic priority can be conferred on the objective of transparency over the right to protection of personal data . . . even if important economic interests are at stake".
The redacted details in this case consist primarily of the names, telephone numbers, and addresses, including the location of the homes and email addresses, of various individuals. The details generally relate to individuals who made complaints about various matters referred to in the enforcement file, such as a planning application relating to wind turbines, a quarry that was refused planning permission, and matters relating to biodiversity. I note that at least one of the complainants seems to be a staff member of a public authority, but I am satisfied based on my examination of the records that the complaints were made by individuals acting in a personal capacity. The redactions also include a small amount of commentary and, in a few instances, the name of one of the planning applicants against whom complaints were made, but the commentary and the context in which the name is provided could reveal the identity of certain complainants. I am satisfied that the information concerned relates to natural persons or individuals. Under Article 4(1) of the GDPR and section 1 of the DP Acts, ‘personal data’ is information or data relating to a natural person or individual that can identify an individual either directly or indirectly. The General Court (then known as the Court of First Instance) of the CJEU in Case T-194/04, Bavarian Lager v. Commission, available here, cited, in the context of the definition of personal data in Regulation (EC) No 45/2001, surnames and forenames, postal addresses, and telephone numbers as examples of personal data (see paragraph 104). I am satisfied that the redacted details at issue in this case could directly or indirectly lead to the identification of the complainants and are personal data for the purposes of the GDPR, the DP Acts and the 2018 Act. The confidentiality of the information is thus protected by EU and national data protection law. As referenced in my previous decisions (e.g., Case CEI/15/0016, An Taisce and Department of the Environment, Community and Local Government), section 37 of the FOI Act is another relevant law providing for the protection of personal information.
Disclosure of information under the AIE Regulations would be akin to disclosing it to the world at large, as the AIE Regulations do not expressly impose any restrictions on the use of information made available under AIE. I am satisfied that such disclosure would adversely affect the confidentiality of personal data within the meaning of article 8(a)(i). I do not accept that either the Council or this Office is required to consult with the individuals concerned in order to seek their consent to the release of their personal information or data, as the applicant suggests. This is particularly true where, as here, multiple third parties are involved and there is no indication that they expected their details to be made publicly available. Accordingly, I find that the details redacted from Enforcement file U411-08 fall within the exception to access provided for by article 8(a)(i) of the AIE Regulations.
In relation to the the public interest test under article 10(3) of the AIE Regulations, I note that the right to privacy is afforded strong protection under both European an Irish law. The right to privacy and the right to data protection are fundamental rights under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union ("the Charter"). The right to privacy has also been recognised by the Irish courts as an unenumerated right under Article 40.3 of the Irish Constitution. I therefore consider that there is a very strong public interest in upholding an individual's right to privacy and right to data protection. While neither right is absolute, I consider that privacy and data protection rights should be set aside only where the public interest served by granting the request is sufficiently strong to outweigh the public interest in protecting privacy and personal data. In this case, I find that the disclosure of the enforcement file concerned apart from the identifying details of the third party complainants has satisfied the public interest in openness and transparency in relation to the requested environmental information to a significant extent. I am therefore satisfied that the public interest served by disclosure of the redacted details does not outweigh the interest served by refusal. For the sake of completeness, I note that I am also satisfied that the requested file was provided in an appropriate format in the circumstances.
In accordance with article 12(5) of the AIE Regulations, I have reviewed the decision of the Council in this case. I find that Council's decision to refuse access to the details redacted from Enforcement file U411-08 was justified under article 8(a)(i) of the Regulations. I affirm the Council's decision accordingly.
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.
Peter Tyndall, Commissioner for Environmental Information