Decision
Dr Ted Nealon and the Environmental Protection Agency (EPA)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0047
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: CEI/18/0047
Published on
Whether the EPA should be required to provide the appellant with access to information that it withheld in response to his AIE request
On 12 September 2018, the appellant submitted an AIE request to the EPA seeking:
“all records, emails, draft responses, assessment etc to, from and by [a named member of the staff of the EPA] relating to his correspondence with Brownfield Restoration Ireland Ltd and the site investigations and ‘remediation’ of the illegal landfill site at Whitestown”.
On 24 September 2018 the EPA emailed the appellant saying:
“I would be obliged if you could refine your request as otherwise it could be refused on voluminous grounds. You could consider limiting the time frame. In addition, could you please clarify if you need any correspondence copied to [the named a named member of the staff of the EPA] as these would have been released to you under other AIE requests?”
The appellant replied on the same day, saying
“To confirm, I do not require any documents copied to [the named member of the staff of the EPA] which have already been granted to me under separate requests. The information I seek is in relation to the response of [the named member of the staff of the EPA] to Brownfield Restoration Ireland Ltd. when the company expressed its concerns about the proposed remediation, concerns which were subsequently upheld by the High Court. Brownfield wrote to the EPA on a number of occasions during 2014 and those concerns were referred to in a letter of December 2014 by [the named member of the staff of the EPA]. Brownfield then responded further to [the named member of the staff of the EPA] in January 2015. The information I am seeking is all correspondence and documents to and from [the named member of the staff of the EPA] which relate to the assessment he carried out of Wicklow County Council's 'botched' remediation of Whitestown, his assessment of the Mouchel reports relating to that 'remediation', his assessment of the concerns relating to that 'remediation' raised in correspondence by Brownfield, his assessment of previous responses by the EPA, draft copies of the letter he issued to Brownfield and all assessments, documents relating to the January 2015 response from Brownfield to his letter.’
On 5 October 2018 the EPA asked the appellant to clarify if he wished to confine his request to a particular time period “so that his request could be processed”. He replied on the same day and specified the period from 01 November 2014 to 28 February 2015.
EPA later told my investigator that it considered the AIE request as valid from the date when it received this clarification, i.e. 5 October 2018. That view was mistaken. The request was valid and “the clock began to run” from 12 September 2018, when EPA received the original request. Twelve days later, EPA alerted the appellant to the possibility that the request, as it stood, could be refused on the basis that it was manifestly unreasonable. An AIE request can only be refused on a ground provided by the AIE Regulations if it is first accepted and then processed to reach a decision. I saw nothing in the AIE request, as it was originally made, that rendered it invalid. I therefore regarded the delivery of a decision to the appellant as falling due before, or at the latest on, 11 October 2018. That is not to say that EPA ought not to have asked the appellant to consider refining the scope of the request as it did, i.e. by asking if he sought information that it had already given him and by asking about a date range. Those requests were entirely appropriate. However, EPA erred by failing to realise that the clock ran from the date of the receipt of the AIE request, notwithstanding that a valid AIE request may be refused where it is manifestly unreasonable. By “valid AIE request”, I mean an AIE request which meets the formal requirements of article 6 of the AIE Regulations and which therefore falls to be processed in accordance with those Regulations.
When the appellant did not receive a decision on 11 October 2018, the Regulations deemed the request to have been refused on that date and the appellant acquired the right to ask for a review up to 10 November 2018.
The EPA gave notice of its decision to part-grant the request on 26 October 2018, as the appellant had “already received documents that come within the scope of this request in other previous responses to AIE requests…this year”. It refused access to “a number of records” on the grounds that:
“This information that is refused is deemed to be personal confidential and legally professionally privileged information in accordance with article 8(a)(i) and article 9(1)(b) of the Regulations”.
The reference to “part-granting” was confusing. The EPA did not identify any environmental information that it had decided to release in response to the request. If EPA regarded information that it had previously provided to the appellant as being outside of the scope of the request, it should have said so. As part of its decision notice, EPA provided a table which listed no “released information” and which identified the withheld information as comprising three specific records, which it labelled records 1, 2 and 3.
The grounds for refusal were:
· Articles 8(a)(i), which 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,
· Article 9(1)(b), which provides that a public authority may refuse to make environmental information available where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries). EPA later confirmed to my investigator that legal proceedings relating to the subject matter are ongoing and further proceedings are contemplated.
The appellant requested an internal review on 26 October 2018, saying:
“There was no intention on behalf of the legislators, either the EU Commission or the Oireachtas, and no intention under the Aarhus Convention, for any aspect of the legislation to be used to facilitate a cover-up of any sort but especially when it comes to a botched remediation such as occurred at Whitestown…”
He referred to a number of judgments of the High Court “in civil proceedings against Wicklow County Council during 2017” and added that “in these circumstances, I believe all documents should be provided to me…. In addition to the emails, I would have expected some draft assessments to have been carried out by [the named member of the staff of the EPA] before he publicly attempted to support the remediation”.
I noted that this request made two points. First, it challenged the refusal to provide access to the three identified records. Second, it questioned whether further relevant records were held.
As EPA received this request on 26 October 2018, the appellant became entitled to receive a review decision before, or at the latest on, 25 November 2018. The EPA gave notice of its decision on 23 November 2018. This decision purported to affirm the original decision. However, other than saying that it affirmed the original decision it did not expressly address the first part of the review request, which challenged the refusal of access to three specific records. Instead, it explained that an extensive search “has been carried out” (without saying whether it was referring to a new search done in response to the review request or whether it was referring to the original search) and this had not located any other relevant records. It refused access to such information on the ground of article 7(5), on the basis that the requested records “did not exist”.
While it said that it was “an entirely new and separate decision”, it did not show on its face that it was the result of a complete review of the original decision because it did not mention the three refused records. Unsurprisingly, given the lack of clarity in the decision, the appellant did not understand it. He wrote to the EPA asking if he had been again refused access to the three records and EPA confirm that this was the case.
The appellant appealed to my Office on 12 December 2018, saying that the EPA had only part-granted his request. He submitted that he had been refused access to three records and he challenged the grounds for refusal. He did not challenge the EPA’s position that it held no further relevant environmental information.
The scope of my review reflects the scope of the appeal. My review, therefore, was confined to considering the refusal of the three records.
The appellant submitted that the EPA’s reliance on article 9(1)(b) was unexplained, and added that the High Court proceedings relating to the remediation were completed in 2017 and that the purpose of this article is not to allow the covering up of wrongdoing.
At the request of my investigator, EPA provided my Office with copies of the three records with the specific information which EPA believed should not be released on the ground of article 8(a)(i) highlighted. The appellant submitted that “concerns about article 8(a)(i) can be addressed by redaction”. The appellant confirmed to my investigator that this meant that he excluded “personal information like email addresses” from the scope of this appeal.
The information at issue was, therefore, the information contained in three records minus the email addresses which appear on those records.
In carrying out my review I had regard to the submissions made by the appellant and the EPA. The EPA confirmed that the member of its staff who was named in the AIE request continues to be a member of its staff and is therefore not a ‘third party’ to this review.
I also 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); and the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’): and the relevant jurisprudence of the courts.
Record 1
This is an email thread which consists of 4 emails and a letter.
· The earliest email, which I labelled ‘email 1’, was sent to a lawyer and it asked for legal advice.
· The next email (‘email 2’) was the lawyer’s response, containing legal advice.
· The next email (‘email 3’) was a re-sending of the same legal advice from the same lawyer to the recipient of email 2.
· The latest email in time (‘email 4’) asked members of the EPA’s staff for their views on the legal advice, and the letter was attached to this email.
Although the EPA bunched these documents together and labelled them as “record 1”, it was clear that the letter itself fell within the scope of the request on its own merits. I therefore regarded record 1 as comprising record 1A (the letter) and record 1B (the four emails).
Record 2
This included a duplicate of email 4 and a copy of the same letter. I did not consider these documents further as part of record 2, as they fell for consideration as part of record 1.
Record 2 also contained an email (‘email 5’) which had two attachments: a copy of a newspaper article and a copy of a memorandum created by a third party. The subject of the memo was “Works completed by Brownfield on-site during January 2015” and it was dated 30 January 2015. Neither the newspaper article nor the memo sought or contained legal advice. However, they were attached to email 4 for the purpose of being brought to the attention of the lawyer from whom legal advice had been sought. Neither the newspaper article nor the memo fell within the scope of the request on their own merits: they fell within scope simply on account of having been sent as attachments to email 4, which did fall within the scope of the request.
Record 3
This is an email thread consisting of two emails. Both are out of scope because they are dated outside of the time-window specified by the appellant.
Confirmation of the information to be considered
My investigator asked the appellant if he already held a copy of the letter, article and memo. The appellant confirmed that he did and he consented to those three documents being excluded from the scope of his appeal. Accordingly, I excluded them from the scope of my review. I found, from the above, that this review was concerned with access to environmental information in five emails (emails 1, 2, 3, 4, 5).
Analysis of the five emails: do they contain environmental information?
I examined the information in the emails in order to see if it is environmental information within the meaning of the definition set out in article 3 of the AIE Regulations. In doing so, I took the view that the remediation of the illegal landfill at Whitestown was both a measure and an activity that affected elements of the environment. Accordingly, my examination included a search for ‘information on’ that measure or activity. I was mindful that it would not be sufficient for information to merely ‘relate’ to such a qualifying measure or activity in order to constitute ‘information on’ the measure or activity.
Email 1: I did not identify any environmental information in this email. I did not regard a request for legal advice as to how a letter should be responded to as information on the remediation of the landfill or any other category of environmental information.
Email 2: This email provided legal advice as to how best to respond to the letter. I did not identify environmental information in this email.
Email 3: This email merely resent email 2 to the same recipient.
Email 4: This email invited views on the legal advice as to how best to respond to the letter. I did not identify environmental information in it.
Email 5: This email informed its recipient that the lawyer who gave legal advice had been asked to clarify some aspects of it and it provided some further information that (it said) the lawyer “should be aware of”. That “further information” consisted of the newspaper article and the memo which have been excluded from the scope of my review. I did not identify any environmental information in this email.
I found that the withheld emails do not constitute or contain environmental information. I do not have jurisdiction to review a public authority’s refusal to provide access to information which is not environmental information. I concluded that it would therefore be inappropriate for me to review the reasons given by EPA in its refusal decisions.
Having carried out a review under article 12(5) of the AIE Regulations and found that the information at issue does not constitute or contain environmental information, I affirm the EPA’s decision, while varying the reason justifying that decision to reflect that finding.
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