Cinneadh
Dr. Fred Logue and Forestry Appeals Committee
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147507-S3J9V2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147507-S3J9V2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the information requested by the appellant is “environmental information” within the meaning of article 3(1) of the AIE Regulations
18 December 2024
1. On 28 December 2023, the appellant made the following request under the AIE Regulations to the FAC:
(1) For each of the last three years, i.e. 2021, 2022 and 2023 please provide a list of AIE appeals to the Commissioner for Environmental Information against decisions of your organisation which were initiated in each of those years with the date of the appeal and the Commissioner’s case reference.
(2) For each appeal please indicate whether external legal practitioners were engaged.
(3) In each case where the answer to question (2) was yes please provide the name of the solicitors and/or counsel that were engaged.
(4) In each case where eternal legal counsel was engaged please provide the costs broken down as follows:
(i) Solicitors professional fee;
(ii) VAT;
(iii) counsel’s fees per counsel if more than one; and
(iv) itemised outlay
(5) For each of the three years listed in (1) please provide the total overall spend by your organisation on external legal advice relating to AIE requests, appeals and litigation.
We would like to get this information in Excel format.
2. As will be set out below in more detail, the appellant wanted this information to fully participate in a communication to the Aarhus Convention Compliance Committee (the ACCC).
3. The FAC responded to the appellant’s request on 26 January 2024, releasing an excel sheet which collated the information held by it in response to part (1) of the appellant’s request. In relation to parts (2), (3), (4) and (5) of the request, the FAC informed the appellant that it did not consider that information to be “environmental information” within the meaning of article 3(1) of the AIE Regulations.
4. On 26 January 2024, the appellant submitted a request for internal review to the FAC. In this correspondence, and supplementary correspondence on 2 February 2024, the appellant outlined his view that the Commissioner (for Environmental Information) had already determined that legal costs relating to environmental litigation, which would naturally include AIE appeals to the Commissioner is environmental information and he referenced cases OCE-100993-X1G6Q1 (Mr. Ken Foxe, Right to Know CLG and Coillte Teoranta (Coillte)) and OCE-136880-Q2N3W3 (FP Logue Solicitors c/o Dr Fred Logue and An Bord Pleanála).
5. On 23 February 2024, the FAC provided the outcome of its internal review to the appellant. The internal reviewer upheld the original decision, including as follows:
“With regards to the information you sought in (2) to (5) of your request I agree with the original decision maker that this information does not constitute “environmental information” within the meaning of Article 3(1) of the AIE Regulations and therefore does not fall within the scope of the AIE Regulations.”
6. The appellant brought an appeal to this Office on 16 March 2024.
7. On 8 April 2024, the FAC was provided with a copy of the appellant’s statement of appeal and was requested to forward, within six (6) weeks or by 20 May 2024, both the subject matter information/records and a final submission in support of its decision in this case.
8. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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, the Commissioner will require the public authority to make available environmental information to the appellant.
9. The powers of the Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. It is clear from the FAC’s internal review decision, along with it correspondence with this Office, that it is the FAC’s position that the information sought at parts (2), (3), (4) and (5) of the appellant’s request is not “environmental information” such that it falls outside the scope of the AIE Regulations.
10. In accordance with this Office’s Procedures Manual, available at www.ocei.ie, our general practice in cases such as this, concerning a threshold jurisdictional issue, is to limit our review to the preliminary matter of whether the information sought is “environmental information” such that it falls within the scope of the AIE Regulations.
11. Accordingly, I am satisfied that it is appropriate to limit the scope of this review to whether the FAC was justified in refusing access to the information requested by the appellant on the basis that it does not constitute “environmental information” within the definition provided at article 3(1) of the AIE Regulations.
12. As per this Office’s standard procedures, the FAC was requested to provide a copy of the subject matter information/records in this matter for the purposes of this review. The FAC did not provide any records and raised the following points in response to this Office’s request:
“First, the request is made in respect of certain information rather than specific records. It would require the FAC to compile information which is specific to the questions posed and which is not currently held in a specific record form. As the information requested is not environmental information, it does not appear to be necessary for the FAC to compile the information into record form for the purposes of providing it to the Commissioner. In that context, it is also noted that the information requested is primarily the amount spent on legal costs and does not appear to be necessary for the Commissioner to have sight of the specific figures in order to determine whether the information requested is environmental information.
Second, there is an absence of clarity as regards the nature of the request made by Mr. Logue. The request refers to “external” legal advisors, though it is not clear what this term means. For the information of the Commissioner, it can be noted that the FAC does not retain private law firms for the purpose of addressing AIE requests or appeals.”
13. It is the Commissioner’s view that it falls to this Office to decide on a case by case basis whether it is essential for him to review the entire content of the requested information before determining whether it is environmental information.
14. In many cases, the content of the requested information will be highly relevant to the determination. This is one of the reasons why, in most cases, the Commissioner requires the public authority to make the requested information available to this Office for the purposes of our review. In other cases, the information requested will not itself be intrinsically environmental and the question will be whether the information requested is information ‘on’ a different measure or activity which is likely to affect the environment. In such cases, examination of the entire content of the requested information may be unnecessary. I am satisfied that this review falls into the latter category of cases and that I was able to carry out this review without reviewing the requested information.
15. In its submissions to this Office, the FAC raised various queries in relation to the appeal which was lodged with the Commissioner in this case.
16. I note that the investigator assigned to this case confirmed to the FAC that the appellant in this case is the same as the requestor. In addition, having noted that the appellant requested to have multiple appeals consolidated into one decision, the investigator also confirmed that the appeal in respect of the FAC’s decision on the appellant’s request was being administered on its own merits.
17. In the interest of clarity, I am satisfied that the appeal brought to this Office against the FAC’s decision on the appellant’s AIE request dated 28 December 2023, is a valid appeal.
18. In his appeal dated 16 March 2024, which was received by this Office on 19 March 2024, the appellant submitted that the information requested was necessary for his client’s communication to the ACCC in relation to the prohibitive costs of appeals (case ACCC/C/2023/199). The appellant made further submissions to this Office on 9 April 2024 in support of his appeal, which are summarised below.
19. The appellant submitted that Article 9(4) of the Aarhus Convention requires that the procedures for access to justice under Article 9(1) must not be prohibitively expensive. He submitted that, for AIE matters, there are several instances of access to justice under the first paragraph of Article 9(1) starting with the Commissioner for Environmental Information (CEI) whose decisions are further capable of being appealed to the High Court on a point of law.
20. The appellant submitted that the costs of appeals to the Courts are subject to special provision in Sections 3 and 5 of the Environment (Miscellaneous Provisions) Act 2011 which alters the normal “loser pays” rule in litigation to “one-way cost shifting” for AIE appeals, whereby the requestor is not exposed to adverse costs if they lose but is entitled to recover costs if they win, submitting that the Irish Courts have ruled (e.g. Heather Hill) that these special costs rules give effect to Ireland’s obligations under the Aarhus Convention.
21. The appellant submitted that there are no similar provisions, or indeed any provisions, relating to the costs of appeals to this Office. The appellant further submitted that he is advising his client (Right to Know CLG) on a communication to the ACCC alleging that Ireland has not complied with Article 9(4) since it has not implemented any measures to ensure that the costs of appeals to this Office are not prohibitively expensive. The appellant submitted that this AIE request is part of the research that he is undertaking in order to establish the actual costs of appeals to this Office so that they can be presented to the ACCC so as to inform it about typical costs incurred by parties to appeals to this Office. He made similar requests to a number of public authorities as part of this research.
22. The appellant referred to the definition of “environmental information” in Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ). He submitted that the required analysis is fact specific and a purposive approach to interpretation should be used having regard to the objectives of the Aarhus Convention and the AIE Directive, particularly in marginal cases. The appellant submitted that “the public authority simply stated that the request was not for environmental information and copied out the definition from the regulations”. He submitted: “It is impossible to understand [the FAC’s) decision. However, it is clear that the decision is wrong, regardless of the reasons.”
23. The appellant submitted that this Office has already held, in cases CEI/12/0008 (Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht) and OCE-93406-G5Y0Y0 (Right to Know CLG and Department of Communications, Climate Action and the Environment), that the AIE Regulations come within the concept of measures designed to protect the environment and therefore are within category (c). He further submitted that per the decision in Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2) this Office ought to follow its earlier decisions unless there is good reason not to.
24. The appellant argued that, in the current case, information on the legal costs incurred in appeals is clearly integral to this measure. He submitted that the issue of costs and financial barriers to the exercise of environmental rights is an important aspect of the Aarhus Convention and occurs in a number of areas as follows:
a. Article 4(8) tightly controls charges for supplying environmental information.
b. Article 5(2)(c) prohibits charges for accessing publicly available lists, registers or files.
c. Article 6(6) requires access to the information needed for public participation to be free of charge.
d. Article 9(1), second paragraph, requires an AIE reconsideration procedure that is free of charge or inexpensive (note: this correlates to internal review).
e. Article 9(4) requires that the procedures under Articles 9(1) to (3) are not prohibitively expensive.
f. Article 9(5) requires consideration of appropriate assistance mechanisms to remove or reduce financial or other barriers to access to justice.
25. The appellant submitted that it is clear that the cost of AIE appeals is information that is quite central to the overall Aarhus Convention and in particular to AIE and access to justice.
26. The appellant submitted that this Office has already held, in cases OCE-100993-X1G6Q1 and OCE-136880-Q2N3W3, that legal costs are capable of being environmental information. He submitted that there is no material difference between the current case and these earlier cases to distinguish them, such that the current request is not environmental information. The appellant argued that the logic in these cases doesn’t mean that legal costs are environmental information only because the legal action causes delay.
27. The FAC provided submissions to this Office on 20 May 2024, on whether the information requested is “environmental information” within the meaning of the AIE Regulations, which are summarised below. In this regard, it submitted that the information does not come within definition of environmental information in article 3(1) of the AIE Regulations, “as it is not information on any of the matters which are listed in (a) – (f) of that definition”.
28. The FAC submitted that that the right of access to environmental information is wide, but not unlimited. It referenced Case C-316/01 Glawischnig v. Bundesminister fur Sicherieit und Generationen (Glawischnig) and Case C-297/12 Fish Legal v. Information Commissioner (Fish Legal) and cited paragraph 25 of Glawischnig, that information must have more than a minimal connection with the environment and there must be more than a mere connection or link to the environment in order to bring the information within the scope of the definition.
29. The FAC submitted that the principles by which it is determined whether certain information is environmental information have been discussed in, for example, the decision of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v. Information Commissioner & Henny [2017] EWCA Civ 844 (Henney), which has been approved in this jurisdiction in Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond) and RTÉ. The FAC submitted that much of that analysis focuses on whether information is information on a particular measure, therefore coming within the scope of article 3(1)(c). In this instance, FAC submitted that no “measure” has been identified within the meaning of article 3(1)(c) and, therefore, the information cannot be environmental information.
30. The FAC submitted that in the absence of a “measure” being identified, it is difficult to understand the basis upon which it could be argued that the information is information “on” that measure. In that context, the FAC noted that the case law suggests that the definition of environmental information should be considered in light of the aims and purposes of the AIE Directive and the Aarhus Convention and that information will not be environment information and, in particular, will not be information “on” a measure “because it is not consistent with or does not advance the purpose of those instruments’” (Henny, paragraph 47). It submitted that the Court of Appeal further drew a link between this issue and the recitals of the Aarhus Convention which “refer to the requirement that citizens have access to information to enable them to participate in environmental decision-making more effectively, and the contribution of access to a greater awareness of environmental matters, and eventually, to a better environment” (Henny, paragraph 48).
31. The FAC noted that in Redmond, the Court of Appeal noted the views of Beatson LJ which suggested that the definition “should be “read down” by reference to the purpose of the Aarhus Convention and the AIE Directive to provide for access to environmental information so as to enable members of the public to be better informed and better able to contribute to environmental decision making.” It argued that the general approach to interpretation is also reflected in Case C-470/19 Friends of the Irish Environment v. Commissioner for Environmental Information (at paragraph 37) and of the Supreme Court in Right to Know CLG v. Commissioner for Environmental Information [2022] IESC 19. The FAC submitted: “In light of these principles, it is difficult to understand how the information which is requested could be environmental information as it is not information which goes to environmental decision making nor is it related to the participation of the public in any environmental decision making process.”
32. The FAC submitted that neither of the prior decisions of the Commissioner referenced by the appellant (OCE-136880-Q2N3W3 and OCE-100993-X1G6Q1), support the proposition that the information requested is environmental information.
33. The FAC submitted that the decision in OCE-136880-Q2N3W3 relates to whether a particular request was dealt with in accordance with Article 7(4) and 11(4) of the AIE Regulations and does not address the definition of environmental information. In relation to OCE-100993-X1G6Q1, the FAC submitted that this decision addresses a specific set of legal proceedings and the question as to whether those legal proceedings were a measure for the purposes of the definition of environmental information. It submitted that there is nothing in that decision which identifies a general or specific measure to which the request in this case relates, nor did the requestor in this case identify how the discussion in that decision is relevant to the request made by him. The FAC argued that the suggestion that “the Commissioner has already determined that information on legal costs relating to environmental litigation which would naturally include AIE appeals to the CEI is environmental information” is incorrect and that decision contains no such finding. It submitted that the analysis of the Commissioner in OCE-100993-X1G6Q1, was wholly fact specific to the proceedings in issue in that appeal.
34. The FAC submitted that, “... insofar as [the appellant] may suggest that a decision on a request for environmental information is, itself, a measure which will or is likely to affect the environment, he has provided no reasons as to why that is the case by reference to the specific information sought by him”. Further, the FAC submitted that the information requested by the appellant (i.e. the identities of legal advisors and the legal costs discharged) is not information “on” such a decision as it is too remote from that decision and not integral to it and it is not information which, of itself, has any impact on the decision nor does it have any connection with the environment. The FAC submitted that it is information which has a minimal connection to the environment and is of the type which the CJEU did not, in Glaswischnig, consider to come within the scope of the AIE Directive.
35. On 12 September 2024, the investigator assigned to this case wrote to the FAC and provided a summary of the appellant’s submissions to this Office dated 9 April 2024. The FAC was provided with an opportunity to include any further information that it considered may be relevant to the Commissioner’s review, including if it wished to make any comments in response to the content of the appellant’s submissions to this Office. The investigator also proffered her preliminary view, that the implementation of the AIE Regulations by the FAC could be considered a measure within the meaning of article 3(1)(c) of the AIE Regulations, in cognisance of the finding in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), including that "likely to affect" the environment should really be understood in the sense of being "capable of affecting” the environment.
36. On 3 October 2024, further submissions were received from the FAC, as summarised below with regard to the matter of article 3(1) of the AIE Regulations.
37. In terms of the underlying purpose of the request, as described in the appellant’s submissions, the FAC noted that the Aarhus Convention, the Directive and the AIE Regulations contain certain requirements in relation to the costs of making a request for environmental information and appealing that decision. It also noted the relevant provisions of the Convention identified by the appellant; however, the FAC submitted that all of those provisions relate to the costs which may be imposed on a requester. It submitted: “Each of the Convention, the Directive and the AIE Regulations are silent on the costs incurred with public authorities managing requests under the AIE Regulations.”
38. The FAC submitted that appeals before the Commissioner are a “no costs” environment in that the Commissioner has no power to order that a requester pay any of the legal costs of a public authority associated with an appeal. In that regard, it submitted that the comparison drawn with the special costs rules in the Environment (Miscellaneous Provisions) Act, 2011 and the statement to the effect that there are no provisions relating to the costs of the appeals before the Commissioner is somewhat misleading. The FAC submitted that the special costs rules exist for the purpose of disapplying the rules on legal costs which exist in respect of litigation before the Courts and to give effect to the requirements of the Convention, the Directive and the EIA Directive in respect of legal costs. It argued that as the Commissioner has no power to make an award of legal costs against a requester, the need for special costs rules do not apply. It submitted that, “the position before the Commissioner is that a requester cannot be exposed to an adverse costs order”. The FAC submitted:
“In light of the foregoing, it is difficult to understand the relevance of the request made to the research being carried out. Information on costs incurred by public authorities could never be relevant to the question of whether there is compliance with Article 9(4) of the Convention as that “not prohibitively expensive” provision applies in respect of the costs imposed on a requester. An allegation of a breach of Article 9(4) could only be premised on the contention that the costs incurred by a requester are not prohibitively expensive. The legal costs of a public authority associated with dealing with appeals to the Commissioner can never be imposed on a requester and consequently could never be considered to be “costs incurred by parties” in a manner which was relevant to the question of whether there had been a breach of Article 9(4) of the Convention.”
39. The FAC noted the Investigator’s proffered preliminary view that, “information concerning the manner in which a public body such as the FAC implements this legislation, could be considered capable of impacting on public participatory activities…” and, on that basis, “the implementation of the AIE Regulations by the FAC could be considered a measure within the meaning of paragraph (c)”. The FAC submitted that the test in Minch requires the measure itself to be capable of affecting the environment. It argued that considering this issue by reference to information concerning the measure, rather than the impacts of the measure itself, “is circular and does not address how the measure itself meets the definition in article 3(1)(c) of the AIE Regulations”.
40. The FAC submitted that the Commissioner considered, in case CEI/12/0008, that the AIE Regulations only protected the elements of the environment in an “indirect and aspirational manner only”. The FAC submitted that having an indirect or aspirational affect on the environment is not equivalent to being “capable of affecting” the environment. Consequently, it argued that the implementation of the AIE Regulations, on the Commissioner’s own logic, could not be a measure within the meaning of paragraph (c) of the definition of environmental information.
41. The FAC further submitted: “Without prejudice to the foregoing, if the “implementation of the AIE Regulations by the FAC” is a measure for the purposes of the AIE Regulations, the scope of that measure is necessarily limited and does not extend, for example, to all administrative actions taken by public authorities under the AIE Regulations, as previously determined by the Commissioner in Decision CEI/12/0008.”
42. The FAC submitted, without prejudice to the submission that the “implementation of the AIE Regulations by the FAC” is not a measure for the purposes of the AIE Regulations, that the information requested is not information “on” that measure and consequently is not environmental information.
43. The FAC submitted that the question to be determined is whether information relating to the identity of “external legal advisers” (a term that the FAC contends is not defined) and the fees paid to them is information on the implementation of the AIE Regulations. The FAC submitted: “As already found by the Commissioner, the scope of that particular measure does not extend to any individual administrative decision taken under the AIE Regulations, which said decisions are not measures within the meaning of the Regulations.”
44. The FAC submitted that information which could fall within the scope of the request is not information on the implementation of the AIE Regulations, particularly where the AIE Regulations say nothing in relation to the legal costs which may be incurred by a public authority. It argued that nothing in respect of the implementation of the AIE Regulations by the FAC turns on the identity of legal practitioners or the amount of any fees which may have been paid to them in respect of any individual appeal brought to the Commissioner. The FAC submitted that such information does not, for example, demonstrate how the Regulations have been implemented by the FAC. It submitted: “The request is akin to the example given in Henney in respect of information relating to the procurement of canteen services by a public authority, which is not environmental information as it is too remote or incidental to the programme under consideration in that case.”
45. The FAC submitted that the disclosure of the requested information would do nothing to achieve the aims and objectives of the Convention or the Directive. It noted that the aim of the Convention and Directive is to improve public participation in environmental decision making and it submitted that the publication of the identity of “external legal advisers” and the amounts which are paid to them does nothing to advance the aim of encouraging greater public participation in decision making or greater awareness of environmental matters. The FAC argued that there is nothing in the summary of the appellant’s submissions provided to it, which supports the contrary view nor any evidence which would support such a contrary view.
46. The FAC submitted that the Convention and the Directive are silent on the legal costs which may be incurred by public authorities and do not contain any provisions which regulate those costs. It submitted that insofar as either the Directive or the Convention refer to costs associated with requests for access to environmental information, they are directed at limiting the costs which may be imposed on a requester. The FAC argued that the specific articles of the Convention cited by the appellant are irrelevant to the legal costs which may be incurred by a public authority and, further, it is not clear how those articles are said to relate to the implementation of the AIE Regulations by FAC.
47. The FAC submitted that the statement by the appellant that “the costs of AIE appeals is information that is quite central to the overall Aarhus Convention and in particular to AIE and access to justice” is inaccurate. It contended that the costs with which the Convention is concerned are the costs which may be incurred by a requester and that the legal costs incurred by a public authority in respect of any appeals cannot be imposed on a requester so those legal costs are not “central” to the Convention or access to justice. In that context, the FAC submitted that as the legal costs cannot be imposed on a requester they are not a “financial barrier” to the exercise of environmental rights. It submitted that the legal costs incurred by a public authority have no impact on the ability of an individual to appeal to the Commissioner or exercise other rights under the Directive and that, “any assertion to the contrary by the [a]ppellant is not supported by evidence”.
48. The FAC submitted that, “it is unclear how the argument made by the [a]ppellant goes to the question of the implementation of the AIE Regulations by FAC”.
49. The FAC submitted that, “insofar as the [a]ppellant suggests that the Commissioner has already held that legal costs are environmental information, the decisions relied upon to support that proposition … demonstrate that they do not address the issue in this appeal and provide no support for the contention that the requested information is environmental information.”
50. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out this review, I have had regard to the submissions made by the appellant and by the FAC. In addition, I have had regard to:
• the judgments in Minch v Commissioner for Environmental Information [2017 IECA 223 ] (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020 IECA 83 ] (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020 IEHC 190 ] (ESB No. 1), Right to Know v Commissioner for Environmental Information & RTÉ [2021 IEHC 353 ](RTÉ) and Electricity Supply Board v Commissioner for Environmental Information [2024 IEHC 17 ] (ESB No. 2);
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017 EWCA Civ 844 ] (Henney) which is referenced in the decisions in Redmond, ESB No. 1, RTÉ and ESB No. 2;
• the decision of the UK Upper Tribunal in Department for Transport, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018 UKUT 127 (AAC) ] (Porsche);
• the decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig) and C-470/19 Friends of the Irish Environment Ltd v Commissioner for Environmental Information (Friends of the Irish Environment);
• 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’).
51. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
52. Article 3(1) of the AIE Regulations provides that “environmental information” means:
“any information in written, visual, aural, electronic or any other material form on:
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c)”
53. According to national and EU case, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB No. 1 at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU. However, the right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition.
Identification of a measure or activity
54. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB No. 1 at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
55. The appellant contends that the relevant measure in this case is the AIE Regulations. He also notes that this Office has already held in previous cases, including CEI/12/0008 and OCE-93406-G5Y0Y0, that the AIE Regulations come within the concept of measures designed to protect the environment and therefore are within category (c).
56. The FAC, in its original and internal review decisions, did not provide reasons for the its position that the information requested by the appellant is not environmental information. During the course of this review, and prompted by the investigator’s proffered preliminary view, the FAC contends that if the question to be determined is whether information relating to the identity of external legal advisers and the fees paid to them is information “on” the implementation of the AIE Regulation by the FAC, the scope of that particular measure does not extend to such administrative actions under the AIE Regulations, citing this Office’s decision in case CEI/12/0008.
57. In my view, the relevant measure here is the implementation of the AIE Regulations by the FAC. This is the case in respect of all parts of the appellant’s AIE request, which I view as interrelated. Furthermore, I note the findings in Minch which included that "likely to affect" the environment in paragraph (c) should really be understood in the sense of being "capable of affecting” the environment. In this context, I consider that information concerning the manner in which a public body such as the FAC implements this legislation, could be considered capable of impacting on public participatory activities; participation which advances the purposes of the Aarhus Convention and the Directive. I will elaborate on my considerations below.
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
58. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that “something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the “general and unlimited right of access” that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive)” (paragraph 63).
59. The spirit and intent of the AIE process, as outlined in Recital 1 of the AIE Directive, is that “increased public access to environmental information … contribute[s] 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”. The AIE Regulations and perhaps more so, the manner in which the Regulations are implemented by public bodies such as the FAC, determines the extent to which this intent is advanced. Therefore, it is clear to me that there is a real or substantial possibility this measure can be said to have, at least, an indirect effect on the environment.
60. The FAC, according to its website, provides an appeals service against decisions on forestry licence applications made by the Minister for Agriculture, Food and the Marine. The FAC was established in 2018 under section 14A of the Agriculture Appeals Act 2001 as amended by the Forestry Act 2014. Appeals can be made against decision on licenses for afforestation, felling, forest road works and aerial fertilisation.
61. On this basis, I consider that the work of the FAC in determining appeals on forestry licensing applications is clearly the type of administrative activity is envisaged by paragraph (c) of the definition on environmental information. It follows therefore that the FAC holds environmental information, access to which is important to enable members of the public to know and understand what is happening in the environment around them and effectively participate in environmental decision-making.
62. The FAC refers to the judgment in Friends of the Irish Environment at paragraph 37 (and of the Supreme Court in Right to Know CLG v. Commissioner for Environmental Information [2022] IESC 19), and contends that in light of the principles reflected in these cases, it is difficult to understand how the requested information could be environmental information as it is not information which goes to environmental decision making nor is it related to the participation of the public in any environmental decision making process. However, I do not agree that this conclusion can be drawn from these judgments. To agree with this would be akin to creating a blanket exemption for information concerning or related to court proceedings or quasi-judicial processes. This would not, in my view, accord with the purpose of the Regulations and the Directive and each case must be addressed on its own particular facts.
63. It is clear from the Recitals of the Aarhus Convention that the very purpose of the AIE Regime is environmental protection. For example, Recital 9 states: “in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns.”
64. Thus the implementation of the AIE Regulations by a body such as the FAC self-evidently has an impact on the environment. At a minimum, decisions made without transparency and public participation will lack public support. This point is made in Recital 10 of the Aarhus Convention itself:
“Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment”
65. As stated in Recital 1 of the Directive, implementation of the AIE regime will lead to a better environment. The measure, therefore, is “likely to affect” the environment as there is a real and substantial possibility that it will affect the environment.
66. The nature of the FAC’s work means that the manner in which it implements the AIE regime as a whole (both in relation to access requests and its organisation and dissemination obligations in article 5 of the Regulations and Article 7 of the Directive) is likely to have an impact on the environment. In my view, to say otherwise is the same as saying that the access to information provisions of the Aarhus Convention will not lead to a better environment and the aims of that Convention, as set out in its recitals, will not be met. I cannot accept that this is the case. It was clearly the view of the signatory States to the Aarhus Convention that having access to environmental information will achieve the aims of Recital 9, set out in paragraph 69.
67. Similarly, it was also the views of the signatory States that there can be no effective public participation in environmental matters without information, as set out in recitals 7 and 8:
“Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations,
Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,”
68. Accordingly, I am satisfied that the implementation of the AIE Regulations by the FAC is a measure affecting or likely to affect the elements of the environment as set out in paragraph (c) of the definition of environmental information.
69. I understand that this is a departure from the conclusion of a previous Commissioner in CEI/12/0008. In ESB No. 2 the High Court overturned a decision of this Office on a number of bases, including that the Commissioner had departed from a previous decision without giving adequate reasons for this change of position.
70. The decision in CEI/12/0008 was issued in 2013, almost twelve (12) years ago. In that time there have been a number of Irish, English and EU cases that have clarified the law in relation to the definition of environmental information. I would refer in particular to the Minch, Redmond and Henney judgments. Minch clarified the test for whether a measure had an impact on the elements and factors on the environment while Redmond clarified that the information itself does not need to have this impact, but the focus was on the measure in question.
71. In CEI/12/0008 the then Commissioner concluded that the AIE regime was designed to protect the environment, but only in an “indirect and aspirational way”. In my view the analysis in that decision that allowed the then Commissioner to reach that conclusion would not succeed in light of the tests set out in Minch and Redmond. For example, the decision in CEI/12/0008 states that the connection between an AIE request and any impact on the environment is too remote. But in Minch the Court of Appeal states that the test was whether the measure was capable of having an impact on the environment. Applying that test I think that it is clear that in this case how the FAC implements the AIE regime is capable of having an impact on the environment given the extent of its environmental operations and the quantities of environmental information that it holds.
72. Later on in that decision, the conclusion is that the processing of AIE requests is not “designed” to protect the environment. In my view that is not the correct analysis. It is more correct to say that the implementation of the AIE regime, which includes processing AIE requests, affects, or is likely to affect, the environment, in the sense that it is capable of affecting the environment. That is the test set out in article 3(1)(c) of the AIE Regulation and in Minch.
73. Finally, the decision in CEI/12/0008 states that the intention of an applicant in making a request is not a relevant consideration. I do not believe that this is correct. What is at issue here is whether the AIE regime as implemented by the FAC affects or is likely to affect the environment. While the requestor does not have to state their interest in making the request, that does not mean that the framework in which a request is made cannot be used to consider whether a measure has an impact on the environment.
74. But even if I am wrong in this, I simply do not accept that the AIE regime has environmental protection only as an indirect or aspirational aim. The very purpose of the regime is environmental protection and I have set this out above. The signatory States to the Convention, and the EU legislature in drafting the Directive, put environmental protection at the heart of the access regime. It is the very purpose of the Aarhus Convention, and access to information is one of three limbs that allows Member States to achieve that aim. To claim that this is indirect or aspirational is wrong as a matter of law.
Whether the information is ‘on’ the measure or activity
75. As “any information … on” a measure or activity affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information “on” such a measure (Redmond at paragraphs 57 and 59). As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). The question as to whether information is “on” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure” (at paragraph 48).
76. Importantly, while Henney uses the terms “critical”, “fundamental” or “integral”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
77. The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and AIE Directive (see Redmond at paragraph 99). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99). The test set out in Henney was also explicitly endorsed by the High Court in the RTÉ case (see paragraph 52) and is also referenced in the recent ESB No. 2 judgment.
78. The purpose and outcome of any engagement on the FAC’ part of external lawyers in the AIE process is done to ensure the proper implementation of the AIE Regulations and thereby facilitating appropriate access to environmental information. I consider that such intention clearly serves to advance the purpose of the AIE Regulations, and consequently the Directive and the Aarhus Convention. Rather than an incidental element, I would consider this in fact to be central to the implementation of the legislation, in particular in situations where a public authority which has adopted the principles and provisions of corporate governance set out in the Code of Practice for the Governance of State Bodies considers it necessary to expend resources in this way.
79. The FAC’s submissions to this Office noted the requestor’s stated reasoning for seeking the information in question, i.e. to inform a submission to the ACCC on the prohibitive cost of appeals to this Office, however the FAC disputed the relevance of the request made to the research being carried out.
80. The ACCC was established under Article 15 of the Aarhus Convention. The Committee serves as a compliance mechanism whereby Parties to the Convention or members of the public may, for example, bring a concern regarding the implementation of the Convention to the Committee for consideration. Members of the public and NGOs bring access to justice issues before the Compliance Committee in situations where they consider that the relevant domestic legal framework fails to comply with any of the requirements of Article 9 of the Convention, either generally, in the systemic sense, and / or in relation to a specific case.
81. The appellant contends that the issue of costs and financial barriers to the exercise of environmental rights is an important aspect of the Aarhus Convention. I note that Article 9 of the Convention in particular addresses a wide range of important practical matters concerning access to justice, including that the costs involved in engaging and participating in the review procedure must be affordable (‘not prohibitively expensive’).
82. I consider that the type of information sought by the appellant may indeed be relevant to the Committee, for example, if it is alleged that arrangements for access to justice are inaccessible due to prohibitive costs. Consideration of wider operability of the AIE regime, including possible complexity of the legislation may also be warranted, in particular if it can be shown that public authorities such as the FAC regularly consider it necessary to engage external lawyers in order to correctly apply the legislation (other than on an exceptional basis).
83. In addition, I consider that the legal representation and costs information requested in parts (2), (3), (4) and (5) of the AIE request is information ‘on’ the measure because it is information that gives an insight into the FAC’s approach to its obligations. It also influences the approach that a requester must take if it is to successfully obtain environmental information from the FAC or engage effectively with the OCEI on appeal, in turn impacting on the ability of some requesters to successfully obtain information. For example, if the information provided by the FAC suggests that legal advice or assistance is sought in relation to many of the AIE requests made to the FAC, a requester could conclude that their requests ought to be framed in a manner that fully addresses any legal concerns that might arise. Similarly, if the information suggests that legal advice or assistance is sought in relation to many of the appeals to this office, an appellant could conclude that they are likely to have to engage with legal points in any appeal to this Office if they are to participate effectively in the appeal process. This is notwithstanding the inquisitorial role of this Office.
84. I am therefore satisfied that information concerning the costs of engaging external legal services for processing AIE requests, appeals and litigation is information that is on the implementation of the AIE Regulations by the FAC and is not at such a remove from the AIE process to render it too remote. As such, I am satisfied that all of the information requested is information “on” a “measure or activity” within the meaning of article 3(1)(c) of the Regulations and should be considered “environmental information” within the scope of the AIE Regulations. It is clearly about the measure, it relates to it and concerns it. The appellant has set out a clear process that he is engaging in and how the information will assist him in that process. It is in this framework that I consider that the information is on the AIE regime. The appellant will be better informed by access to this information and better able to contribute to an environmental process. Release of the information advances the purposes of the Aarhus Convention and the Directive.
85. On that basis, I am remitting the matter to the FAC for consideration of release of the information requested in accordance with the provisions of the AIE Regulations. In this regard, I wish to highlight the comments made by the FAC in submissions to this Office as outlined at paragraph 12 above, suggesting a lack of clarity as regards the nature of the request made by the appellant. I would suggest to the FAC that a plain language interpretation of the term “external legal advisors” would mean any legal advisors who are not employed directly the FAC. However, it is always open to the FAC to engage with the appellant on the particulars of his request before making a fresh decision on the matter. If the FAC is of the view that no information within the scope of the request is held by or for it following engagements to refine the request, it should provide reasoning for that position to the appellant in accordance with the requirements of article 7(4) of the Regulations and the general duty to give reasons as set out in cases such as Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90.
86. 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 FAC’s internal review decision in this case and I direct it to provide the appellant with a new internal review decision in respect of the request.
87. 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