Decision
Mr. Andrew Jackson and Bord na Móna
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/12/0003
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/12/0003
Published on
Appeal to the Commissioner for Environmental Information
European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2011
Appellant: Mr. Andrew Jackson, Friends of the Irish Environment, Kilcatherine, Eyeries, Co. Cork
Public Authority: Bord na Móna (BnM)
Issue: Whether BnM was justified in its refusal of the appellant's request on the ground that it is not a public authority within the meaning of the AIE Regulations 2007 to 2011 ("the Regulations")
In a request made to BnM dated 13 January 2012, the appellant sought access to (1) a list of BnM bogs that are covered by an Integrated Pollution Prevention and Control (IPPC) licence; (2) a list of any BnM bogs that are not covered by an IPPC licence; and (3) data held by BnM on bogs owned and/or worked by non-BnM companies. The appellant specified that the information sought at Item Three of the request included: "locations, maps (GIS or otherwise), the area under drainage/extraction at each site, the name(s) of company(ies) involved, and any information regarding when drainage and extraction commenced". In a decision dated 9 February 2012, BnM refused the request on the basis that company did not consider itself or its subsidiaries to be a "public authority" within the meaning of the AIE Regulations. Without prejudice to its position, however, BnM provided the information requested regarding the BnM bogs. BnM denied that it held information on bogs owned and/or worked by non-BnM companies and stated that, in any event, the information could not be provided for "data protection reasons".
On 29 February 2012, the appellant applied for internal review. He set out detailed reasons for considering that BnM carries out public administrative functions, including specific duties, activities or services in relation to the environment. He also noted that the Guidance on implementation of the Regulations published by the Department of the Environment, Heritage and Local Government expressly refers to commercial semi-state bodies in its section on relevant public authorities. In addition, he recounted a telephone conversation with a named BnM employee which led him to believe that the company holds information on bogs owned and/or worked by non-BnM companies. Lastly, he challenged BnM's refusal of the information for "data protection reasons". However, in a decision dated 29 March 2012, BnM affirmed its original decision to refuse the request on the basis that it was not a public authority within the meaning of the AIE Regulations. On 23 April 2012, the appellant made an appeal to me as Commissioner for Environmental Information against BnM's decision.
In a letter to BnM dated 15 August 2013, Ms. Melanie Campbell, Investigator, outlined her reasons for considering that BnM is a public authority within the meaning of Articles 3(1)(b) and (c) of the AIE Regulations. In its reply dated 12 September 2013, BnM sought to maintain its position that it is not a public authority. It emphasised that it is a commercial body which has no licensing or regulatory role and that, due to its established Employee Share Ownership Plan (ESOP), not all of its shares are owned by or on behalf of a Government Minister. Alternatively, BnM argued for the first time that the requested information regarding the bogs owned and/or worked by non-BnM companies is not "environmental information" within the meaning of the AIE Regulations. It also argued that the information is, on the one hand, required to be made available to the public such that it falls outside the remit of the AIE Regulations by virtue of Article 4(1), and yet, on the other hand, is subject to refusal as "personal information" under Article 8(a)(i) of the Regulations. Lastly, it claimed that it does not "have control of the information being sought, in respect of the verifiable ownership rights of third parties to bog lands".
In carrying out my review, I have had regard to the appellant's statement of appeal, the submissions made by BnM, and the Department's Guidance. I have also had regard to Directive 2003/4/EC, upon which the AIE Regulations are based, and The Aarhus Convention: An Implementation Guide (Second edition, April 2013) [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.
Article 12(3) of the Regulations provides for a right of appeal to the Commissioner by a person whose request for environmental information has been refused. Article 11(5)(a) of the Regulations clarifies that a decision to refuse a request for environmental information, which may be appealed to the Commissioner, includes a request that "has been refused on the grounds that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations". In this instance, BnM has refused the request on the grounds that it is not a public authority within the meaning of the Regulations. The issue for decision in this appeal, therefore, is whether or not BnM constitutes a "public authority" for the purposes of the Regulations. This appeal does not deal with the question of whether the information requested by the appellant constitutes "environmental information" or whether such information falls to be released under the AIE Regulations.
Article 3(1) of the Regulations provides that
"'public authority' means, subject to sub-article (2)-
(a) government or other public administration, including public advisory bodies, at national, regional or local level,
(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and
(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),
and includes-
(i) a Minister of the Government,
(ii) the Commissioners of Public Works in Ireland,
(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),
(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),
(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),
(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,
(vii) a company under the Companies Acts, in which all the shares are held-
(I) by or on behalf of a Minister of the Government,
(II) by directors appointed by a Minister of the Government,
(III) by a board or other body within the meaning of paragraph (vi), or
(IV) by a company to which subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information".
Article 3(2) provides:
"Notwithstanding anything in sub-article (I), 'public authority' does not include any body when acting in a judicial or legislative capacity."
It is not claimed that BnM acts either in a judicial or legislative capacity; accordingly, Article 3(2) has no relevance to this case.
As required by Article 14(3) of the AIE Regulations, the Minister for the Environment, Community and Local Government has published an indicative list of entities which constitute "public authorities" for the purposes of the Regulations. This list, which is available on the website of the Department of the Environment, Community and Local Government, includes commercial state agencies and references Eirgrid plc as an example. Bord na Móna is a commercial state agency in the same sense as is Eirgrid plc and, on the face of it, one would assume that, like Eirgrid plc, it also constitutes a public authority for the purposes of the AIE Regulations.
Bord na Móna (meaning in English the Turf Board or the Peat Board) was established as a statutory body under the Turf Development Act 1946 to develop Ireland's peat resources in the national interest. While the Turf Development Act 1998 provided for BnM's formation and registration as a public limited company under the Companies Acts, section 9(2) of the 1998 Act states that "[t]he principal objects of the Company shall be those comprised in the functions conferred on the Board by the Turf Development Acts, 1946 to 1995". In addition, section 58 of the 1998 Act provides that the duties and powers set out in the 1946 Act remain applicable to the company. The "duties" set out in section 17 of the 1946 Act are as follows:
"(a) to produce and market turf and turf products, and
(b) to foster the production and use of turf and turf products, and
(c) to acquire bogs and other lands, and
(d) to manage, develop and work bogs and other lands vested in the Board, and
(g) generally to do all such other things as arise out of, or consequential upon, the duties mentioned in the preceding paragraphs of this section."
Bord na Móna is a commercial state agency whose board is appointed by the relevant Minister (currently, the Minister for Communications, Energy and Natural Resources). Moreover, the Department of Communications, Energy and Natural Resources has a Peat Division whose main responsibilities include, according to its website, "monitoring and overseeing the operations of BnM, including its financial and corporate affairs". Bord na Móna states that the Peat Division of the Department is not involved in the day-to-day operational management of the company. Nevertheless, I am satisfied that the company is "under the control" of a body falling within paragraph (a) of the definition for the purposes of the AIE Regulations.
Bord na Móna describes itself in its Mission Statement as "Ireland's leading environmentally responsible integrated utility service provider encompassing electricity, heating solutions, resource recovery, water, horticulture and related services". Bord na Móna accepts that it has statutory functions and duties under the Turf Development Act 1946, including the duties set out in section 17 of 1946 Act (as above). Nevertheless, BnM states that it has no specific duties in relation to the environment and that it does not have any public responsibilities or functions relating to the environment.
In the light of BnM's statutory duties on behalf of the State in relation to turf, bogs, and "other lands", it is difficult to understand how it can argue in good faith that it does not have any specific duties in relation to the environment or that it does not have any public responsibilities or functions relating to the environment.
In relation to Article 3(1)(b) of the AIE Regulations, BnM emphasises that it is a commercial body which has no licensing or regulatory role. However, BnM has cited no authority for the proposition that a commercial body with no licensing or regulatory role cannot nevertheless be performing public administrative functions for the purposes of Article 3(1)(b). Licensing and regulatory functions are undoubtedly typical public administrative functions, but not exclusively so. I note, for instance, that in the High Court case of The General Medical Services (Payments) Board v. The Minister for Social Welfare [1976-7] I.L.R.M 210, Hamilton J held that a public authority is a body which has public or statutory duties to perform for the benefit of the public, and not for private profit.
Subparagraphs (a) to (c) of Article 3(1) of the Regulations mirror the definition of public authority found at Article 2(2) of the Directive. The term "including", which is used in both the Regulations and the Directive in relation to bodies performing "public administrative functions", has been given an expansive meaning by the European Court of Justice in the context of the previous AIE Directive, 90/313 EEC (see Mecklenburg v. Pinneberg [1998] EUECJ C-321/96). It is also noteworthy that, in his recent judgment in National Asset Management Agency v. Commissioner for Environmental Information [2013] IEHC 86 (27 Feb. 2013), Mac Eochaidh J. observed in relation to Article 2(2) of the Directive: "It is difficult to imagine a broader definition of 'public authority'."
To be clear, I wish to emphasise that BnM's functions are statute-based and include specific duties in relation to the environment, namely, turf, bogs, and "other lands", which are all elements of the environment. As its mission statement indicates, BnM also carries out activities and provides services in relation to the environment. I accept that BnM performs its functions on a commercial basis, but it does so for the benefit of the public, not for "private profit".
The Aarhus Guide states that subparagraph (c) of the public authority definition "clearly covers natural or legal persons that are publicly owned, for example, community-owned public service providers".
The Guide further states:
"[S]ubparagraph (c) covers entities performing environment-related public services that are subject to regulatory control.
The provision reflects certain trends towards privatisation of public functions that exist in the ECE region. . .
There may be some overlap between subparagraph (b) and (c) of the definition, but it is clear that any person providing public services in relation to the environment under the control of a body or person falling within subparagraphs (a) or (b) is a 'public authority'."
The references in the Guide to public ownership and regulatory control suggest to me that the term "control" under subparagraph (c) is not intended to be interpreted as day-to-day operational control. It is also apparent that even privatisation is not necessarily sufficient to remove bodies with public functions relating to the environment from the scope of the public authority definition.
Bord na Móna is publicly owned. The Minister for Finance and the Minister for Communication, Energy and Natural Resources hold 95% of its shares, with the remaining 5% being held by its employees through its Employee Share Ownership Plan. Bord na Móna emphasises that the Ministers do not hold all of its shares. This appears to be an argument that, in order to qualify as a public authority under subparagraph (c) of the definition, a body must necessarily fall within the list of bodies at (i) to (vii) of the definition. Such an interpretation would not be in keeping with the Directive.
Having considered these matters carefully, I am satisfied that BnM is a public authority within the meaning of Article 3(1)(b) of the Regulations in that it is a legal person "performing public administrative functions under national law, including specific duties, activities or services in relation to the environment". In addition, I am satisfied that Bord na Móna is a public authority within the meaning of Article 3(1)(c) of the Regulations in that it is a legal person "having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b)". I find accordingly.
In accordance with Article 12(5) of the Regulations, I have reviewed the decision of BnM in this case. I find, for the reasons set out above, that BnM was not justified in refusing the appellant's request on the ground that it is not a public authority within the meaning of the Regulations. I find that BnM is in fact a public authority within the meaning of both Article 3(1)(b) and (c) of the Regulations.
I hereby annul the decision of BnM to refuse the appellant's request on the basis that it is not a public authority within the meaning of the Regulations. In the light of this decision, BnM must now deal with the appellant's request in accordance with the Regulations.
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.
Emily O'Reilly
Commissioner for Environmental Information
23 September 2013