Cinneadh
Mr. X and DAA Public Limited Company
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150828-H3X0F8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150828-H3X0F8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether DAA was justified in refusing access, under article 9(1)(c) of the AIE Regulations, to certain information contained within the record; and, whether DAA was justified in imposing a fee under article 15(1) of the AIE Regulations
5 September 2024
1. On 11 March 2024, the appellant submitted the following request to DAA under the AIE Regulations:
“Could you please provide me with a breakdown of the inventory of fire fighting foam purchased by [DAA] on a yearly basis since 2010. Please include the supplier and the contents of the fire fighting foam. Please provide the data in electronic format.”
2. DAA provided an original decision on 10 May 2024, refusing the appellant’s request and citing articles 9(1)(b) and 9(1)(c) of the AIE Regulations. In its cover correspondence, DAA apologised to the appellant for the late decision, referencing “an administration error” which caused the appellant not to be notified of an extension of the time required by DAA to make a decision on the request (article 7(2)(b) of the AIE Regulations refers).
3. On 10 May 2024, the appellant requested an internal review of DAA’s decision, as follows:
“I want to appeal this decision to refuse the information requested. Could you please provide feedback as to what course of justice you are referring to? And specifically, how an inventory of fire fighting foam could impact on any course of justice? Also could you please provide a schedule of records that you are refusing to release?”
4. DAA issued its internal review decision on 7 June 2024, which identified one (1) record
considered relevant to the appellant’s request, entitled “Foam Procurement 2010 to 2023 Excel inventory of foam procurement in Litre by daa” and affirmed its original decision to refuse release of the information under articles 9(1)(b) and 9(1)(c) of the AIE Regulations.
5. The appellant submitted an appeal to this Office on 26 July 2024, which was received on 29 July 2024. It may be noted that article 12(4)(a) of the AIE Regulations provides that an appeal to the Commissioner must be made not later than one month after the internal review decision has been, or was required to be notified to the applicant. Under article 12(4)(b) of the Regulations, however, the Commissioner may extend this time limit. On 7 August 2024, this Office invited submissions from the appellant outlining why the Commissioner should consider extending the time limit for initiating his appeal. Following consideration of those submissions, and in the circumstances of this case, the Commissioner considered it reasonable to extend the time limit and the appeal was duly accepted on 15 August 2024.
6. On 15 August 2024, DAA was provided with a copy of the appellant’s statement of appeal and was requested to forward, within three (3) weeks or by 5 September 2024, both the subject matter information/ record and a final submission on any exceptions that it wished to rely upon and to explain its decision(s) on the specific information/record at issue. On 5 September 2024, DAA advised, that having reviewed this Office’s request, it was now in a position to release the information in question to the appellant.
7. On 13 September 2024, DAA wrote to the appellant outlining a revised decision, proposing to part-release the relevant record, citing the exception providing by article 9(1)(c) of the AIE Regulation only, and following payment of a €60 fee by the appellant under article 15 of the Regulations.
8. On 17 September 2024, DAA was requested to furnish this Office with a copy of the redacted record which it was now proposing to grant to the appellant, as well as a complete unredacted version of this record for the purposes of the Commissioner’s review. This information was received by this Office on 19 September 2024.
9. On 27 September 2024, the investigator assigned to this case wrote to the appellant to ascertain his current position in the matter. She advised the appellant that, as suggested in the record title (see point 4. above), the record contained a breakdown of the product amounts for the years requested, by product type and vendor. She also confirmed that the redacted information related to Vendor name. The investigator informed the appellant of her intention to proceed with the investigation in terms of the redactions applied under article 9(1)(c), subject to the appellant’s position regarding DAA’s revised decision. She also advised that the investigation may also examine whether DAA are justified in imposing a fee under article 15 of the AIE Regulations; notwithstanding the appellant’s prerogative to pay the said fee in the interim, in order to obtain the information which DAA was now proposing to part-release.
10. On 27 September 2024, the appellant confirmed to this Office that he wished to continue with the current appeal, with scope also to include whether DAA is justified in imposing a fee under article 15 of the AIE Regulations, following DAA’s revised decision dated 13 September 2024.
11. On 1 October 2024, the investigator wrote to DAA, clarifying the current scope of appeal and inviting final submissions in support of its decision. Submissions were received from DAA on 15 October 2024.
12. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal. I have now completed this review under article 12(5) of the Regulations. In so doing, I have had regard to all submissions made by the parties and I have reviewed 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’); and
• The Aarhus Convention – An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
13. The appellant’s request for internal review, as outlined above, queried the absence of reasons for refusal by DAA under articles 9(1)(b) and 9(1)(c) of the AIE Regulations.
14. In his statement of appeal to this Office, dated 26 July 2024, the appellant provided context to the information sought, explaining: “Fire fighting foam has been indicated as the primary source of the PFAS contamination. [DAA] have stated that they have stopped using fire fighting foam containing PFAS in 2013 and I wanted to see the evidence for this.”
15. It can be noted that PFAS is an abbreviation for per- and poly-fluoroalkylated substances which are a large class of synthetic chemicals. Further information on PFAS (and PFOS) substances can be found on the Environmental Protection Agency (EPA) public website here . It can also be noted that material published by DAA in April 2024 concerning the results of a comprehensive two-year risk assessment of PFAS on the grounds of Dublin Airport, included a PFAS FAQ , which includes the following detail (at points 9. – 10.):
“What was the source of PFAS on Dublin Airport campus?
The primary source of PFAS at airports was the use of aqueous film-forming foam (AFFF), which was used historically to fight petroleum-based fires at airports. These foams contained fluorinated surfactants that helped the foam spread rapidly over flaming liquids, cooling and extinguishing fires efficiently. The use of these foams was common across Europe. In 2010 (under the Stockholm Convention on POPs and the EU POPs Regulations) one PFAS compound known as PFOS, was restricted. However, the PFOS free aqueous film forming foam (AFFF) products supplied by manufacturers after this date still contained other PFAS compounds not subject to regulatory restrictions.
Do firefighting foams used at Dublin Airport today still contain PFAS compounds?
No. Since 2013, the firefighting foam used by Dublin Airport Fire Service has been an ICAO approved foam classified as fluorine free. Fluorine-free foams do not contain any PFAS compounds.”
16. Following DAA’s revised decision, dated 13 September 2024, the appellant also disputed DAA’s justification for imposing a fee under article 15 “after such a length of time and refusing access initially”.
17. On 13 September 2024, DAA issued a revised decision to the appellant, as follows:
The original decision on AIE request issued on 10/05/2024 and correspondence from the Commissioner for Environmental Information on an appeal made under article 12(5) of the AIE Regulations (Case number: OCE-150828-H3X0F8) have been reviewed.
One record relates to your request,Foam Procurement 2010 to 2023 . Access to this record is granted in this revised decision with some information redacted by reason of removal of commercially confidential information.
9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect
(c) commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
Article 15 of the AIE regulations allows a public authority to charge a reasonable fee for the cost of supplying environmental information.
daa has set the following charges:
• Search, retrieval, compilation and copying of records: €20 per hour
• photocopy (black and white): €0.04 per sheet
• photocopy (colour): €0.15 per sheet
• CD-Rom: €10
A fee of €60 applies for supplying the information outlined in the Schedule of Records in Appendix A of this letter. This fee is calculated as a ‘search, retrieval and compilation of records’ charge of €20 per hour for 3 hours.”
18. In submissions to this Office dated 15 October 2024, DAA made the following points in justification of the above decision.
19. In relation to its use of article 9(1)(c) of the AIE Regulations, DAA submitted:
“[DAA] would like to note at this time the supplier information redacted is commercial in nature. Details of the product brands themselves and the types of foam were provided to the appellant in the inventory of firefighting foams that was compiled for this request. The vendor details were considered commercially sensitive under the provisions of the FOI Act. The public interest was taken into account in the decision to compile information on the volume and types of firefighting foams procured however it was considered by daa that there was no additional benefit to the public interest served in the provision of individual supplier details.”
20. In relation to the €60 fee charged under article 15 of the AIE Regulations to make available information in response to the AIE request, DAA’s submissions may be summarised as follows:
i. DAA submitted that a search was completed of DAA’s Oracle (financial) electronic system for transaction records and associated invoice documents.
ii. DAA outlined that the tasks to compile the requested information were completed by three personnel and were as follows:
• The company’s chemicals register was reviewed by a member of the Sustainability team. This register did not contain a breakdown of the inventory of fire fighting foam purchased’ from 2010.
• A member of the Finance team met with the Fire Service team to plan the search of transactions and discuss key search terms including product types and vendors.
• A member of the Finance team pulled the transaction listing from Oracle of all transactions for the Fire Service for the requested time period (54,483 lines of data)
• The transaction listing was reviewed by a member of the Finance team and non-relevant transactions were eliminated from the search.
• Remaining transaction line items were reviewed for references to foam, relevant trade partners or other suitable search terms.
• Invoices for 28 transaction line items identified were downloaded from accounts payable sub ledgers on Oracle and reviewed to obtain product and volume details.
• Information retrieved on product type and volume procured annually from 2010 was compiled into an inventory table.
• A member of the Finance team liaised with the Fire Service team to sense check the inventory details were correct and representative.
• A member of the Sustainability team reviewed safety data sheets for firefighting foams to confirm which foams are aqueous film forming foams or fluorine free foams to address the appellants query on the contents of the firefighting foam.
iii. DAA submitted that the estimated total time taken to process the search, retrieval and compilation of invoice and transaction details to compile an inventory of firefighting foams procured was >8 hours; however, total time applied for charges was 3 hours 20 minutes (rounded down to 3 hours), calculated as follows:
• A review of 2,546 transaction line items categorised as ‘fire fighting consumables’ checked against references to foam in the line description and relevant trade partners: 1 hour
• A review of 28 invoices identified at five minutes per invoice: 2 hours 20 minutes
iv. DAA submitted that development of the inventory requested required search and retrieval of a large amount of transaction records spanning a 14-year timeframe. It argued that the times to complete the searches outlined above reflect the shortest time in which these searched could be completed but do not reflect the actual time taken to search for and retrieve data and finally compile the inventory requested.
v. DAA submitted that the charge applied to the AIE request response is considered reasonable by DAA given the man hours taken to complete search and retrieval of the information requested. It argued that the time included in the charge only applies to time spent by a member of the Finance team completing searches of the Oracle system and review of invoices to retrieve and compile product and volume data for the inventory. DAA submitted that additional tasks completed by both the Finance team member and other staff members outlined above were necessary for compilation of the inventory but were not included in application of a charge.
vi. DAA provided information on how its charges are calculated, and the circumstances under which they may be waived, as available to the public, on its website as follows: https://www.daa.ie/esg/environmental-information/
21. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review DAA’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
22. As outlined above, DAA initially relied on articles 9(1)(b) and 9(1)(c) of the AIE Regulations in refusing access to the information concerned. During the course of this appeal, DAA amended its position and, on 13 September 2024, it proposed to part-grant the relevant record, citing article 9(1)(c) of the AIE Regulations in respect of the certain redactions. At this time, DAA also invoked article 15(1) to impose a fee for supply of the environmental information.
23. A review by the Commissioner is considered to bede novo and my jurisdiction allows me to review the matter in full. Accordingly, I consider it appropriate to examine the applicability of article 15(1), notwithstanding the fact that the provision was not originally relied upon by DAA in its internal review decision.
24. This review is therefore concerned with:
(a) whether DAA was justified in refusing access, under article 9(1)(c) of the AIE Regulations, to certain information contained within the record, and
(b) whether DAA was justified in imposing a fee under article 15(1) of the AIE Regulations.
25. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states:
“The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it.” (paragraph 12.4).
26. Article 9(1)(c) must 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. 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.
27. When relying on article 9(1)(c) of the AIE Regulations, a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, and thereby its confidentiality, would be adversely affected by disclosure of the information at issue. The public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
28. In its original decision, DAA merely referred to article 9(1)(c) of the AIE Regulations, and in its internal review decision it stated that it was affirming its original decision. In its revised decision letter, dated 13 September 2024, DAA again cited the provisions of article 9(1)(c) and stated: “Access to this record is granted in this revised decision with some information redacted by reason of removal of commercially confidential information.”
29. In this Office’s request for submissions of 1 October 2024, DAA was asked a series of specific queries regarding its reliance on article 9(1)(c), including:
• whether the information at issue is commercial or industrial in nature;
• to outline where the confidentiality of the information at issue is provided by law;
• whether the confidentiality exists to protect a legitimate economic interest(s);
• to explain how the economic interest(s) identified would be adversely affected by the disclosure of the information at issue, thereby showing that the confidentiality is protecting that legitimate economic interest;
• in doing so, to describe the nature of the adverse effect(s) expected; and
• to explain how the release of the particular information is expected to result in the adverse effect(s) identified; and explain why DAA considers the adverse effects(s) to be reasonably foreseeable.
30. In submissions to this Office dated 15 October 2024, as outlined in full above, DAA submitted that it considered the supplier information/ vendor details to be commercially sensitive “under the provisions of the FOI Act”. DAA did not rely on any particular section of the Act. However, as DAA are not an FOI body, it cannot rely on provisions of the FOI Act in relation to an AIE request. InCommissioner for Environmental Information v Coillte & People Over Wind [2023] IEHC 227, the High Court provided answers to a number of questions posed by this Office in respect of the interaction between the AIE Regulations and the FOI Act. One of those questions was whether a non-FOI body, in that case Coillte, could rely on the provisions of the FOI Act in the context of article 8(a)(iv), and Hyland J found that it could not. It is the position of this Office that this equally applies in the context of article 9(1)(c), and therefore DAA would need to identify an alternative legal basis for the confidentiality of the withheld information in order to rely on article 9(1)(c).
31. As indicated above, article 9(1)(c) must be read alongside article 10 of the AIE Regulations. Articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. In this regard, the High Court inRight to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to [a]rticles 10(3), (4) and (5) and 11(4) of the AIE Regulations, the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal” (paragraph 106). The Court held that in an absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
32. In respect of DAA’s application of article 10 in the context of article 9(1)(c), it is acknowledged, regarding article 10(5), that partial disclosure of the information has been proposed. However, regarding article 10(3) and 10(4), in its submission to this Office, DAA simply proffered that the public interest was taken into account “in the decision to compile information on the volume and types of firefighting foams procured” however, it considered that “there was no additional benefit to the public interest served in the provision of individual supplier details”. This is not an appropriate application of the public interest test which requires a weighing of the public interest served by disclosure of the actual information withheld against the interest served by refusal and for the grounds for refusal to be interpreted on a restrictive basis having regard to the public interest served by disclosure. In addition, I would also note that while it is very clear that the information refused includes third party information, no third parties appear to have been consulted or notified by DAA when processing the request.
33. In light of all of the above, I do not consider that DAA’s reliance on article 9(1)(c) of the AIE Regulations is justified. However, given the presence of third party information in relation to multiple suppliers of fire-fighting foam, I do not consider it appropriate to simply direct release of the information concerned. In order to do so in this case, I consider that it would be necessary for this Office to contact the companies involved in order to provide them with an opportunity to make submissions in respect of the proposed release of the information sought. Given that multiple companies are involved; this would take some time. I am also aware from my decision inMs. X and DAA OCE-148125-H8H6K9 that there are legal proceedings in being which relate to the PFAS issue. Given that DAA have provided no real basis for the application of article 9(1)(c) to the information sought, and have not indicated that the third parties were consulted in relation to the request, I consider it more efficient to remit the matter to DAA for a new internal review decision. This Office has a large backlog of cases, and if we are required to consult with multiple third parties in appeals of this type, this will lead to further delays. I would note than other than the need for the third party to have an opportunity to comment on the release of the information sought, I see no other basis for the information to be withheld. It is difficult to see how information on the supply of goods to DAA, which is a purely factual matter, could adversely affect any third party. As well as this, as noted above, an appropriate legal basis for the confidentiality of the information sought has not been identified.
34. Accordingly, I direct DAA to undertake a fresh internal review process in respect of that information in accordance with the AIE Regulations. This process should be carried out by a person unconnected with the original decision. The appellant will have a right to a review by this Office if he is not satisfied with the DAA’s decision.
35. Article 5 of the AIE Directive provides:
“1. Access to any public registers or lists established and maintained as mentioned in Article 3(5) and examination in situ of the information requested shall be free of charge.
2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.
3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived.”
36. Article 15(1) of the AIE Regulations broadly transposes article 5 of the Directive and provides as follows:
“(a) A public authority may charge a fee when it makes available environmental information in accordance with these Regulations (including when it makes such information available following an appeal to the Commissioner under article 12), provided that such fee shall be reasonable having regard to the Directive.
(b) Notwithstanding sub-article (a), a public authority shall not charge a fee for access to any public registers or lists of environmental information pursuant to article 5(1)(d).
(c) Notwithstanding sub-article (a), a public authority shall not charge a fee for the examination in situ of information requested.
(d) Where an applicant examines information in situ and wishes to obtain copies of that information, a public authority may charge a fee, consistent with the list of fees specified under article 15(2) for the provision of such copies.”
37. The Directive makes it clear that public authorities are entitled to charge a fee for the supply of environmental information provided the fee does not exceed a reasonable amount. Article 5(2) is transposed into national law by article 15(1)(a) of the Regulations which provides that public authorities are entitled to charge a fee so long as the fee is reasonable. The question to be addressed in this appeal is whether the fee of €60 (made up of 3 hours at a rate of €20/hour), imposed by DAA in this case for the supply of information, is reasonable as per the requirements of article 5(2) of the Directive transposed by article 15(1) of the AIE Regulations. Neither the Directive nor the Regulations define what is “reasonable” in this context, therefore to determine what is meant by “reasonable” I have had regard to the relevant case law. The question of what is reasonable in this context will also encompass the question of what a public authority is and is not permitted to charge for when supplying information.
38. In its revised decision letter dated 13 September 2024, DAA set out the basis on which it calculated the fee of €60. This calculation consisted of the time it spent on “search, retrieval and compilation of records”.
39. In C-71/14East Sussex County Council v Information Commissioner (East Sussex) , the European Court of Justice (ECJ) found that all of the factors on the basis of which the amount of the charge is calculated must relate to the actual costs of supplying the requested information. The Court found that this may include the costs attributable to the time spent by the staff of the public authority concerned on answering an individual request for information, including the time spent on searching for the information and putting it in the form required. “The costs of ‘supplying’ environmental information which may be charged under Article 5(2) of Directive 2003/4 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 for information, which includes the time spent on searching for the information and putting it in the form required.” (paragraph 39)
40. As I have set out above the ECJ inEast Sussex clearly stated that charging for time spent on search, retrieval and compilation of records is permitted, therefore I find that DAA was entitled to take this into account when calculating the charge.
41. Article 15(1) makes it clear that the question of what is a reasonable fee must be approached having regard to the requirements of the AIE Directive. Article 3(5) of the Directive requires Member States to ensure that “officials are required to support the public in seeking access to information” and that “the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised”. Article 7(1) seeks to ensure that public authorities are required “to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available”.
42. With articles 7(1) and 3(5) of the Directive in mind, it is clear that AIE requests of a general nature often are of a kind that one would expect to either be proactively published by the public authority or organised and maintained by the public authority in a manner that enables its easy dissemination on request. In such circumstances I do not think it would be reasonable to allow a public authority to rely on its own failure to adequately organise its information to justify the imposition of a charge on the appellant in respect of work which arguably would not have been required had proper document management arrangements been in place.
43. The Advocate General inEast Sussex clarified that when calculating a fee for the supply of information, a public authority cannot pass on the costs of a failure to comply with other parts of the Directive to requestor: “Moreover, an authority may not rely on its failure to comply with its obligations under, for example, Articles 3 and 7 of Directive 2003/4 in order to justify charging an applicant under Article 5(2) because, for example, it is holding information as raw data and has not yet organised that information (as required) in a manner that renders access possible.”
44. I consider the information at issue here, namely“a breakdown of the inventory of fire fighting foam purchased by [DAA] on a yearly basis since 2010 [ to 11 March 2024]” to be quite far on the specific end of the spectrum. I am not persuaded it is information that I would necessarily expect DAA to hold in a way that enables easy dissemination. Having said that, I must stress that there is nothing to stop the public authority from publishing such information regularly, thereby avoiding the need to process AIE Requests seeking such specific information. Indeed, greater proactive publication of environmental information is a significant tool in managing the number of AIE requests made on such matters, and ultimately would reduce the number of appeals to this Office. I am mindful that the role of this Office under article 12(5), is to review the decision of the public authority with a view to affirming, varying or annulling the decision. It is not the Commissioner’s role to direct public authorities to organise their files in a way which facilitates active dissemination – rather this obligation falls under the general duties of a public authority (article 5 of the AIE Regulations). But asEast Sussex makes it clear that public authorities cannot pass its failure to comply with its obligations under, for example, Articles 3 and 7 of the AIE Directive, in order to justify charging an applicant, it is something I have had to consider carefully when deciding on the reasonableness of the fee set out by Coillte in this case. It follows that I am not persuaded that DAA when calculating its charge in this case was trying to justify any failure to comply with its obligations under the AIE Directive.
45. As I have set out above, DAA was entitled to factor in search, retrieval and compilation costs and I do not consider that in setting the charge it is trying to justify any failure to comply with its obligations under the AIE Directive. The next step is to determine whether the charge amount itself set by DAA exceeds a reasonable amount.East Sussex found that the expression “reasonable amount” in the AIE Directive does not include any amount that may have a deterrent effect on persons wishing to obtain information or that may restrict their right of access to information. The Court found that “in order to assess whether a charge…has a deterrent effect, account must be taken both of the economic situation of the person requesting the information and of the public interest in the protection of the environment. That assessment cannot therefore relate solely to the person’s economic situation but must also be based on an objective analysis of the amount of the charge. To that extent, the charge must not exceed the financial capacity of the person concerned, nor in any event appear objectively unreasonable” (paragraph 43).
46. To determine whether the charge imposed by DAA has a deterrent effect on the appellant or restricts his right of access to information, account must be taken of his economic situation. In this regard, I note that on its website, DAA outlines circumstances in which it may waive charges, including that it may reduce the fee having regard to the means of the requester (on production of evidence). I consider that in allowing for such circumstances, DAA has endeavoured to take into account the economic situation of requestors. However, I would also note that information on the circumstances in which DAA may waive charges should also be contained in its decision letter(s) and in its acknowledgement of any request.
47. For the second limb of the test to determine whether the charge in this case has a deterrent effect, I need to consider whether the amount charged is objectively reasonable. DAA has set out the basis on which the charge was calculated – the appellant is charged a fee of €20 per hour for 3 hours of work, which DAA contends reflects the shortest time in which this work could have been completed. In its submissions to this Office, as outlined above, DAA has set out what was involved in this work and how the time frame was arrived at in some level of detail. I consider the timeframe of 3 hours as set out by DAA for processing this information request, bearing in mind the breakdown it has given in how it arrived at this timeframe, does not to my mind seem disproportionate or excessive. Furthermore, I would point out that the steps in the process detailed by DAA are of the type that this Office would expect to be undertaken in response to a request for environmental information.
48. In his Opinion inCommission v Germany C-217/97 which concerned Directive 90/313/EEC (the predecessor of the current AIE Directive), Advocate General Fennelly considered that the notion of what is “reasonable” must be interpreted in light of the general scheme and purpose of the Directive. In light of this, “the question of whether the charges for the supply of information are ‘reasonable’ must be judged from the perspective of the member of the public requesting the information, rather than that of the public authority” (paragraph 23).
49. Drawing on this Office’s experience and the Commissioner’s various statutory remits, I consider that the average member of the public would not necessarily find €60 to be an unreasonable sum of money in the circumstances of the case, including the time spent by DAA in processing the request and in the context of other comparable expenses that members of the public incur on a daily basis. For example, an appeal to this Office, in the absence of consideration of means or other such mitigating factor, incurs a charge of €50.
50. The test set out byEast Sussex also explains that when assessing the reasonableness of the charge “account must be taken… of the public interest in the protection of the environment”. I have considered the public interest in the protection of the environment of the information within the record. In general, if there is a high public interest, this may call into doubt the reasonableness of the charge. The appellant submits that there is significant public interest in the information at issue. I acknowledge that there is a public interest in information relating to the issue of PFAS on DAA lands and I note that the Commissioner annulled the fee charged inKen Foxe ,Right to Know CLG and DAA OCE-150042-L1Y8Z2 on this basis. However, having considered the particular information at issue in this case, an inventory of firefighting foam purchased by DAA, I do not find that the public interest in this specific case is high enough to render the fee of €60 charged by DAA unreasonable. The appellant also submits that DAA is not justified in imposing a fee “after such a length of time and refusing access initially”. However, despite the delay in the provision of the information, this does not in my view, detract from the fact that DAA are entitled to charge a fee in this case.
51. On the basis of the foregoing, in the circumstances of this case, I am not persuaded that the fee imposed by DAA is unreasonable either subjectively or objectively – the test set out byEast Sussex to determine whether the charge imposed has a deterrent effect on persons wishing to obtain the information. It follows that I find that the fee of €60 is reasonable and DAA has acted in accordance with article 5(2) of the AIE Directive and article 15(1) of the AIE Regulations.
52. For the reasons set out above, I find that DAA has acted in accordance with article 5(2) of the AIE Directive and article 15(1) of the AIE Regulations when charging a fee. However, I also find that DAA’s reliance on article 9(1)(c) of the AIE Regulations was not justified.
53. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I hereby annul the decision of the AIE in respect of article 9(1)(c) of the AIE Regulations and I direct it to undertake a fresh internal review process in respect of the withheld information. I affirm the decision to charge a fee in respect of the information that was released.
54. I would also note that should DAA decide to release the information sought during this new internal review process, it would be unlikely that an additional fee could be justified in the circumstances, given that the search, retrieval and compilation of the information sought has already taken place and been charged for.
55. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information