Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-129470-Y6P0W0, OCE-129479-J2F0W9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the information requested was environmental information and, if so, whether Revenue was justified in refusing the requests under article 8(a)(iv) of the AIE Regulations on the ground that the disclosure of the information sought would adversely affect the confidentiality of its proceedings
27 June 2024
1. These appeals each relate to separate requests for information submitted to Revenue by the same appellant in respect of the trading activity of a commercial fuel depot which also provides domestic heating oil. Each request for information was submitted by email to Revenue on 9 May 2022. As the appeals relate to the same subject matter, it is considered appropriate to deal with both in this combined decision that applies to each appeal.
2. The first request for information (request no. 1) was for the following information:
“all environmental data you possess regarding [the fuel depot], including Reports of all inspections carried [sic]
“all Environmental Reports including all inspections carried out, in respect of the Environmental issues raised regarding [the fuel depot] in the letter sent by my Solicitor in 2021 to the Chairman of Revenue
“all Correspondence between the Revenue Commissioners and all [the local authority] Departments including Fire and Building Control Department, Planning Department and Environment and Water Services Departments regarding [the fuel depot’s] Licences, Planning Permission, Spillages, Discharges, Waste System and Emissions
“all Correspondence between the Revenue Commissioners and the Operators of [the fuel depot] regarding Licences, Planning Permission, Spillages, Discharges, Waste System and Emissions”
3. The second request for information (request no. 2) was for:
“all Reports confirming sale or purchase of Kerosene, Diesel and Petrol by [the fuel depot] while [it] was trading without a Dangerous Substance Licence. (I am not interested in the amounts of Kerosene, Diesel or Petrol or taxation paid. I am only interested in this information for Environmental and Health Reasons).
“Reports of all Oral Communication including Phonecalls between the Revenue Commissioners and all [the local authority] Departments regarding [the fuel depot’s] Licences, Planning Permission, Spillages, Discharges, Waste System and Emissions
“Reports of all Oral Communication including Phonecalls between the Revenue Commissioners and the Operators of [the fuel depot] regarding Licences, Planning Permission, Spillages, Discharges, Waste System and Emissions”
4. The requests for information, submitted by email to Revenue on 9 May 2022. concluded with a statement that the appellant “will accept the relevant information in email form.”
5. By way of clarification, references to licences in this decision, whether to mineral oil licences, excise licences, auto fuel and motor fuel traders licences (AFT and MFT licences, respectively), or simply to licences, all relate to the licences required by natural and legal persons to trade commercially in the purchase and sale of oil, such as diesel, petrol and kerosene, and this is the meaning that should be attached to all such references.
6. In separate decision letters, one for each appeal and both dated 9 August 2022, Revenue stated that the requests had been received on 13 July 2022, despite their having been made on 9 May 2022. The letters were posted to the appellant’s home address. Revenue has explained to this Office that it first became aware of the appellant’s two AIE requests in an email sent by this Office to Revenue on 13 July 2022. It clarified that once the requests were received from this Office, they were actioned immediately. Following further enquiries internally, Revenue has explained that it learned that the emails sent by the appellant on 9 May 2022 had been quarantined by its IT security system and did not reach the intended recipient. It clarified further that the emails were released following notification of their existence by this Office and a system was put in place to ensure this situation does not occur again.
7. In the same communication from Revenue to this Office, the public authority explained that the reason the decision letters were hardcopies and sent by post to the appellant's home address was that they contained confidential taxpayer information of a third party. Revenue explained that the letters restated the wording of the requests which included the name of a taxpayer, allegations about that taxpayer and the nature of its business and, as the taxpayer information contained therein was sensitive and confidential, the letters were issued by post rather than through unsecure email, in line with Revenue policy.
8. The decision letter pertaining to request no. 1 [Revenue ref. 1738/2022] states that the opinion of the decision-maker was that the information in the “first part” of the request was not environmental information as defined in article 3(1) of the AIE Regulations and proceeded to refuse this part of the request. In respect of the remainder of the request, the letter stated that, following an examination of material held by Revenue, no records could be located that contained environmental information as defined by article 3(1) of the Regulations and relevant to the request. On the basis that no records existed, this part of the request was refused.
9. In respect of request no. 2 [Revenue ref. 1748/2022], the decision letter stated that, following an examination of material held by Revenue, no records could be located that contained environmental information as defined by article 3(1) of the AIE Regulations and relevant to the request. On this basis, the request was refused.
10. By way of explanation, the reference in the first paragraph of request no. 1 to a solicitor’s letter sent to the chairman of Revenue on behalf of the appellant refers to a letter sent on 26 May 2021, by a solicitor instructed by the appellant, to three Revenue email addresses as follows: one to the Office of the Chairman of Revenue, one to an excise licences address, and one to a Revenue official. The letter related to activity at the fuel depot and concerns of the appellant in connection with certain environmental matters arising from that activity. The letter sought information from Revenue as to why it had issued AFT and MFT licences to the owners of the fuel depot, details regarding investigations Revenue had carried out prior to issuing and renewing the licences, and confirmation that Revenue was aware of certain environmental matters related to the fuel depot. More details of this letter are given further below.
11. Revenue replied to this letter on 4 June 2021, explaining that the matters raised in it would be followed up and investigated. It went on to say that, due to taxpayer confidentiality, Revenue was precluded from passing on any information regarding the taxpayer in question and would be unable to divulge the outcome of any enquiries made in respect of the matter.
12. On 15 August 2022, the appellant submitted a separate internal review request for each appeal. Each explained that the appellant had waited for email responses to the original requests for a month to no avail, had then requested internal review requests on the basis of a non-decision in each case, learning only later that the decision letters had been delivered in paper form to the appellant’s home address. This was therefore the second time the appellant was submitting an internal review request for each appeal, this time not on the basis of having received no response to the original requests but on the basis of the decision of Revenue to refuse the requests.
13. On 6 September 2022, Revenue sent an internal review decision letter for each appeal to the appellant.
14. In the letter pertaining to request no. 1 (Revenue ref. 1738/2022), it affirmed the decision of the original decision-maker, stating that Revenue did not hold any records containing environmental information as defined by article 3(1) of the AIE Regulations and related to the request.
15. In the letter pertaining to request no. 2 (Revenue ref. 1748/2022), it affirmed, in relation to “Point 1” of the request, the decision of the original decision-maker to refuse this part of the request as the information sought did not come within the definition of environmental information as defined by article 3(1) of the AIE Regulations. It also affirmed, in relation to “Points 2 and 3” of the request, that Revenue did not hold any records containing environmental information as defined by article 3(1) of the Regulations.
16. On 5 October 2022, the appellant submitted an appeal to this Office and supported the appeal on 14 October 2022 with detailed submissions, followed by an email communication of 8 November 2022 in which was listed a number of reasons why the fuel depot site posed a risk to human life.
17. On 28 October 2022, Revenue made submissions to this Office and, in response to requests for further information, made additional submissions on 5 July and 20 September 2023, respectively. In the various submissions, Revenue identified a number of records that, though relevant to the application process for the granting of mineral oil licences by it to the operator of the fuel depot, were described as not containing environmental information. Revenue also stated that the disclosure of taxpayer information is protected by legislation and that the application of article 8(a)(iv) of the AIE Regulations, which acts to exempt environmental information from disclosure in cases of confidential proceedings of public authorities, applied in the case of the two appeals. It also noted that the appellant had been previously advised that Revenue is precluded from disclosing any information regarding the tax or licensing affairs of the taxpayer in question and that it would not be able to release the outcome of any enquiries that might be conducted by Revenue. It reiterated the point that the requests had been refused either because records did not exist or records did not contain environmental information.
18. Following correspondence of 6 September 2023 sent to Revenue from the investigator assigned to these appeals, copies of the records to which allusion had been made in previous Revenue correspondence were supplied to this Office for review.
19. 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 the submissions made by the appellant and Revenue. 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);
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
• 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); C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany (Flachglas); and C-60/15 Saint-Gobain Glass Deutschland GmbH v European Commission (Saint Gobain).
• the judgments in 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) and Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ);
• 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 and RTÉ.
20. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
21. The scope of my review in this case is as follows:
• To determine whether the information requested is environmental information as defined by article 3(1) of the AIE Regulations; and if so, whether the provisions of article 8(a)(iv) of the Regulations apply to the information sought and justify Revenue’s refusal to disclose the information to the appellant.
The Parties’ Positions
The Appellant’s Position
22. The appellant maintains that the fuel depot has no planning permission, is in breach of the EU Habitats Directive 92/43/EEC and is discharging hazardous waste material into the local drinking water supply. The appellant maintains that Revenue is fully aware of this, yet continues to licence the fuel depot and further contends that Revenue has been issuing AFT and MFT licences to the fuel depot and continues to do so, in circumstances where the fuel depot is failing to meet a “serious number” of the planning and environmental requirements required under Irish and EU law to operate as a fuel trading business.
23. The appellant also asserts in submissions that Revenue has been the only public body to claim to know of the existence of the fuel depot and has issued licences to it every year for 21 years.
24. The submissions go on to assert that the air emissions from the site include volatile organic compounds (VOCs) released into the air, some of which are cancerous.
25. The appellant contends that article 10(1) of the AIE Regulations, which precludes reliance by public authorities on article 8 and article 9(1)(c) to refuse a request for environmental information when the request relates to information on emissions into the environment, obliges Revenue to release the necessary information, given the discharges and emissions emanating from this site that are damaging the environment and public health.
26. The appellant further asserts that Revenue was in full knowledge that the fuel depot was in breach of environmental regulations and continued to licence it as, contrary to Revenue’s claim that it had no contact with the depot, following an AIE request to the local authority in question, a document released to the appellant indicated that Revenue had made a phone call to the depot urging it to obtain a Dangerous Substance Licence. The appellant questions why Revenue did not make contact with the local authority and report the non-compliance to it.
27. The appellant asserts that the drinking water in the area has been tested and shows a very high presence of total petroleum hydrocarbons which, it is maintained, are carcinogenic to humans. It is further contended that Revenue is licencing a fuel depot that is failing to comply with Irish and EU law under the Local Government (Water Pollution) Act 1977 and the Air Pollution Act 1987, as the depot is discharging its hazardous waste material into the drinking water supply and is not compliant with the sale of petrol from its premises as it is not in possession of a petrol vapour recovery system. The submissions assert, in addition, that the depot is in breach of the Planning and Development Act 2000.
28. Finally, the appellant states that there was no waste system at the site for 20 years and that a drinking water well was only 45m away from it; that there was no site clean-up, so fuels still percolate into the soil and will be there for at least 100 years poisoning the drinking water, which is a supply of drinking water for dwellings that are too far from a water mains connection. The appellant states further that, as the fuel depot site has a capacity of 159,000 litres of fuel, there is substantial air pollution; that there is a fire and explosion risk and the adjacent road is small for fire engines; and that cancer, immunological problems and skin conditions are a huge risk, and the site needs to be shut down.
29. In the submissions to this Office, the appellant makes specific points related to each element of the two requests, as follows:
The Appellant’s Position relating to request no. 1 (Revenue ref. 1738/2022)
30. In relation to the request for “all environmental data [in the possession of Revenue] regarding [the fuel depot], including Reports of all inspections carried out”, the appellant solicits all environmental data and reports compiled by the Local Control Officer, Enforcement Team and all Revenue officials which led them to the conclusion that the site of the fuel depot, to be given an AFT or MFT licence, was safe and secure and suitable for being a fuel depot holding petrol, diesel and kerosene.
31. In relation to the request for all environmental reports “including all inspections carried out, in respect of the Environmental issues raised regarding [the fuel depot] in the letter sent by my Solicitor in 2021 to the Chairman of Revenue,” that letter lists a number of items that it terms environmental issues related to the fuel depot; the appellant avers to Revenue’s response to the solicitor’s letter and to its indication therein that the results of any investigation it would carry out into the matters raised in the letter would not be communicated to the appellant, who maintains that the outcome of any investigation is environmental information by reason of the definition of this term at article 3(1)(b) of the AIE Regulations, whereby information “on” the environment includes “factors, such as substances, energy…or waste, including…emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment” indicated in article 3(1)(a). The factors listed in the solicitor’s letter include, inter alia, the following:
i. The sighting of a “huge” amount of diesel on 8 September 2020 flowing across the site, a phenomenon “seen on numerous occasions”;
ii. Water tested by two laboratories which confirmed the presence of petroleum hydrocarbons in the ground and drinking water; from the appellant’s investigations and the advices received, it appeared there was no protection for drinking water or ground water; the letter states that noxious and toxic vapours were being “emitted from the site”;
iii. The land is in a Special Protected Area;
iv. The land is bounded by a stream that flows into a lake 500m away; as such it is part of the water network of the area that serves a drinking water well that is circa 45m away;
v. The facility is in breach of planning regulations, zoning and environmental legislation;
32. In relation to the request for “all Correspondence between the Revenue Commissioners and … [the local authority] … regarding [the fuel depot’s] Licences, Planning Permission, Spillages, Discharges, Waste System and Emissions”, the appellant asserts that this is environmental information that comes within the ambit of articles 3(1)(c) and 3(1)(d) of the AIE Regulations.
33. Lastly, in respect of the final element of request no. 1, the appellant maintains that the information requested (all correspondence between Revenue and the operators of the fuel depot regarding its licences, planning permission, spillages, discharges, waste system and emissions) likewise falls within the definition of environmental information in articles 3(1)(c) and 3(1)(d).
The Appellant’s Position relating to request no. 2 (Revenue ref. 1748/2022)
34. In respect of the appellant’s request for reports confirming the sale of fuel at the fuel depot while it “was trading without a Dangerous Substance Licence”, it is asserted that Revenue are in possession of this information as it keeps a “Return of Oil Movement”, a document that is a legal requirement for operators to fill out and remit to Revenue with details regarding the sale of fuels; the appellant maintains that discharges and emissions of kerosene, petrol and diesel into the water and air have adversely impacted the environment and that this information comes within the definition of environmental information at article 3(1)(b) which includes energy as one of the “factors” affecting or likely to affect the elements of the environment defined in paragraph (a); also that “energy” includes kerosene, petrol and diesel and that the fuel depot site had no concrete base or “interceptor” for 19 years until after a complaint made in 2020, up until such time spills went into the mud, grass and gravel of the site resulting in discharge into the soil, water and groundwater; moreover, during “pumping”, the toxic oil vapours were entering the air at a distance of 45m from a drinking water well, such that discharges of “oil petrol”, diesel and kerosene into the water and air has a major effect on the air that is breathed and the water that is drunk at the location; arising from this, the appellant contends that this aspect of request no. 2 is for environmental information that falls within the definition of article 3(1)(f), namely, information on “the state of human health and safety, including the contamination of the food chain… [and] conditions of human life…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)”.
35. The second and third elements of request no. 2 seek reports of oral communications including telephone calls between Revenue and the local authority on the one hand, and between Revenue and the operators of the fuel depot on the other hand, regarding the fuel depot’s licences, planning permission, spillages, discharges, waste system and emissions; in submissions, the appellant makes reference to having been informed of a telephone call between Revenue and the local authority’s fire office prior to the issuing of an AFT or MFT licence, and maintains that this is environmental information as it relates to “legislation”, that is, to an AFT or MFT licence, and so falls within the ambit of article 3(1)(c), as does the information sought in the third element of the request, namely a measure such as “policies, legislation, plans, programmes and activities” affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b ) of the article. The appellant makes the point that spillages, discharges, waste system and emissions clearly affect the environment.
Revenue’s Position relating to both appeals
36. In submissions to this Office, Revenue has made the following points in regard to the appeals:
37. Upon receipt of the original requests, it conducted a thorough search of all files and correspondence that related to the subject matter of the requests.
38. In reviewing the records, it says that the definition of “environmental information” was fundamental to the AIE decision-making process. Regard was also had to the Mineral Oil Traders’ Excise Licences Manual and to the Revenue officer with responsibility for the relevant taxpayer’s mineral oil licences. A copy of the manual is accessible on Revenue’s website in redacted form here. Revenue asserts that, as no environmental information, such as that described in paragraphs (a) and (b) of article 3(1) of the AIE Regulations, is required for applications for mineral oil licences, this information is not sought by Revenue in the application process, adding that there is no facility to include additional information in the application form. Moreover, it states, the records do not contain information as described in paragraphs (d) to (f) of article 3(1) of the AIE Regulations. It explains that environmental factors, as set out in the AIE Regulations, are not included in the conditions under which a mineral oil licence is granted and that Revenue has no regulatory or environmental role in matters relating to planning approval, fire safety or health and safety, which are matters for the relevant competent authorities.
39. Revenue has provided information relating to its function of administering and collecting excise duty, chargeable on goods such as mineral oil. It says that excise licences issue to traders who produce, sell, deal in, keep for sale or delivery, or deliver mineral oil products, so that the duty payable can be accounted for.
40. Notwithstanding Revenue’s view that the records it has identified contain no environmental information, it makes express reliance in its submissions on article 8(a)(iv) of the AIE Regulations to refuse to release the records. This provision gives discretion to public authorities to refuse information where disclosure would adversely affect the confidentiality of their proceedings and where such confidentiality is otherwise protected by law, including the Freedom of Information Acts 1997 and 2003 (since consolidated in the FOI Act 2014) with respect to exempt records within the meaning of those Acts. The “proceedings” in article 8(a)(iv) upon which reliance is made by Revenue in its submissions is “the collection and processing of taxpayer information.” Revenue states that, as confidential taxpayer information is protected by law from unauthorised disclosure to third parties under section 851A of the Taxes Consolidation Act 1997 (the TCA 1997), and as section 41(1) of the FOI Act 2014 provides for the non-disclosure of a record where the disclosure is prohibited by the law of the European Union or any enactment (in this case the TCA 1997), the records fall within the embrace of section 851A and are not excluded from this protection by the application of the second limb of section 41(1) of the FOI Act, which excludes enactments specified in Parts 1 and 2 of Schedule 3 to that Act. Section 851 of the TCA 1997 is not included in said Schedule 3 to the FOI Act. This being Revenue’s case, it has refused to release the identified records to the appellant.
41. In submissions to this Office from Revenue, it also relies on section 35(1) of the FOI Act to refuse to release information that may be relevant to the first part of the appellant’s second request, namely the first paragraph of that request (see paragraph 3 above). It states that this section of the FOI Act provides for the refusal of records that contain information obtained in confidence.
Third Party Submissions
42. As the information sought in these appeals refers to information about a third party, this Office conveyed to that third party, namely the operators of the fuel depot, the content of the requests for information with a view to soliciting any views the third party might have on release of the information by Revenue, should the Commissioner direct this public authority to release it. The third party responded with an objection to the release of any information pertaining to it or to the person whose signature is attached to the submissions made by it. The third party states that it is a small family owned business that has tried over the years to be compliant with all regulations and that “trouble with complainants” started only when it installed an interceptor (see paragraph 34 above). It ends by saying that the “ongoing issues” are a cause of great stress to the family. The third party did not make any reference to the AIE Regulations in its letter to this Office.
43. At the heart of the two appeals is the correct interpretation of “environmental information” as defined in article 3(1) of the AIE Regulations. I shall now, therefore, turn to this matter.
44. Article 3(1) of the Regulations defines “environmental information” as “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).
45. The AIE Regulations transpose the AIE Directive at national level and the definition of “environmental information” in the Regulations mirrors that contained in the Directive. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information and enable an informed public to participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive.
46. According to national and EU case law on this matter, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg, paragraph 19), there must be more than a minimal connection with the environment (Glawischnig, paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond, paragraph 58, see also ESB, paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the scope of the definition of environmental information. Otherwise, the scope would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
47. The right of access to environmental information encompasses access to information “on” one or more of the six categories set out at (a) to (f) of the definition. In his decision in RTÉ, Barrett J expressly endorses the approach set out by the Court of Appeal of England and Wales in Henney to determine the “information on” element of the definition of “environmental information” (RTÉ, paragraph 52). The first step is to identify the relevant element of the definition to which the information in question relates. In submissions, the appellant, as described above, contends that the information requested comes within the definition of environmental information as defined at paragraphs (b), (c), (d) and (f) of article 3(1) of the AIE Regulations.
48. The elements of the environment referred to in paragraph (b) are listed at paragraph (a) of the article and include “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”. Paragraph (d) of article 3(1) refers to reports on the implementation of environmental legislation, whereas paragraph (f) relates, inter alia, to information on the state of human health and the conditions of human life inasmuch as they are, or may be, affected by the state of the elements at paragraph (a) or, through those elements, by any of the matters at paragraphs (b) and (c). I shall elaborate on paragraph (c) below.
49. In support of contentions with regard to emissions of fuel into the water supply, the appellant commissioned a report by a consultancy firm that provides environmental services in the hydrogeological and environmental disciplines following an analysis by it of water samples taken in October 2020 and February 2021. A copy of this report has been provided to this office. The samples were analysed by an accredited laboratory, the results of which have been seen by this Office. An interpretation of the results has been made in the report. In submissions, the appellant asserts that the results of the samples confirmed the presence of petroleum hydrocarbons in the ground and drinking water. The appellant alleges that this is due to the failure of the fuel depot to adequately manage waste diesel.
50. I note that, in its various pieces of correspondence with the appellant, as with this Office, Revenue has asserted that the records it holds that are relevant to the appellant’s request do not contain environmental information. The issue before me is whether the information it holds, or any part of it, can be categorised as information “on” the environment as defined in any one part of article 3(1) of the AIE Regulations. Given Revenue’s role in issuing mineral oil licences, I am of the view that it is appropriate to examine, first, whether this function can be considered a “measure” that affects or is likely to affect the environment under article 3(1)(c) of the AIE Regulations and, then, whether information held by Revenue can be considered information “on” the measure, if this falls within the ambit of the article.
51. As detailed above, the definition of environmental information is broad. Information does not have to be intrinsically environmental in order to qualify as environmental information. However, a mere connection or link to the environment is not sufficient to bring the information within the definition of environmental information.
Is Revenue’s AFT and MFT licencing process a “measure” within the definition of article 3(1)(c)?
52. I will first consider whether Revenue’s mineral oil licencing process is a “measure” within the meaning of article 3(1)(c) of the AIE Regulations. Can Revenue’s role, in assessing licence applications and issuing licences to fuel traders, in particular in relation to the fuel deport concerned in these appeals, be considered a measure, including an administrative measure, or an activity that affects or is likely to affect the elements (e.g. air, water, soil, land) and factors (e.g. emissions, discharges and other releases) within the definition at paragraph (c) of article 3(1) of the AIE Regulations?
53. Revenue has indicated the existence of three records relevant to these appeals, namely:
• A site inspection report (with an accompanying site inspection checklist);
• An email thread comprising an internal Revenue email and emails between Revenue and the local authority within whose territorial ambit the fuel depot is located; and
• Reports of Oil Movement pertaining to the fuel depot.
54. Revenue asserts that its function is that of administering and collecting excise duty, chargeable on goods such as mineral oil. It says that excise licences (namely AFT and MFT licences) issue to traders who produce, sell, deal in, keep for sale or delivery, or deliver mineral oil products so that the duty payable can be accounted for.
55. It is the Mineral Oil Traders’ Excise Licences Manual that contains the process to be followed by Revenue officials before they issue AFT and MFT licences to fuel traders. It is therefore a document of interest in the present context, as the licence approval process entails a prior visit by Revenue officials to sites owned by operators who have applied for licences. The manual provides a checklist to be followed and completed by Revenue officials arising from such visits.
56. The manual, last reviewed in June 2024, is publicly available here on the Revenue website in redacted form. It is important to note at the outset that Revenue’s authority to inspect sites and issue, refuse or revoke licences derives from legislation. The manual states that the Finance Act, 1999 (as amended), confers on Revenue the power to grant licences to mineral oil traders (s. 101(3)) and to make regulations to govern the collection of mineral oil tax (s. 104(1)). Section 101 of the Act empowers Revenue to attach conditions to licences it issues (subsection 5) and to revoke licences where such conditions have not been complied with (subsection 7). The regulations in force currently are the Mineral Oil Tax Regulations (S.I.231 of 2012, the Regulations). Regulation 6(1)(b) of these regulations allows Revenue to seek certain information from licence applicants, namely that which is indicated in Schedule 2 to the Regulations, as well as “such other information” as Revenue may, from time to time, require. Further, Regulation 6(2) confers on Revenue the power to require an applicant to provide “any additional information” that it considers necessary for its consideration of an application. As it is an offence (s. 102(d)) of the Act) for a fuel trader to trade without a licence granted under section 101 of the Act, the importance for a trader to comply with any requirements attached to the granting of a licence is obvious. It is the manual which, from a practical viewpoint, contains the conditions which Revenue officials must verify when processing a licence application. These conditions derive, as explained, from the cited Act and the Regulations. It is right, then, that in submissions to this Office, Revenue states that the manual sets out the legislative requirements in relation to AFT and MFT licences. It goes on to say that the manual prescribes the conditions pertaining “to the place or premises” where mineral oil is traded. The processing of licence applications entails a physical visit by Revenue officials to the site the subject of an application. At paragraph 4.1, the manual provides that the conditions for granting a licence may be specified by Revenue (by virtue of section 101 of the Finance Act 1999, as amended). The conditions specified by Revenue are contained in Appendix I of the manual which, at paragraph 1, in respect of applications for both AFT and MFT licences, stipulates that “the premises or place in respect of which the person/entity holds a Marked Fuel/Auto Fuel Trader’s Licence must be secure and suitable for the sale, keeping for sale, delivery or keeping for delivery of mineral oil, to the satisfaction of Revenue”. The conditions stipulate further the requirement of “the appropriate Planning Approval [being] in place, Fire Safety requirements … being met, and Health & Safety regulations … being complied with.”
57. The import of the content of Appendix I of the manual lies in the fact that Revenue has the authority, derived from primary legislation, to refuse the grant of a licence in cases in which it is not satisfied that an applicant has complied with one or other of the conditions stipulated in the Appendix. This means that Revenue holds within its power the ability to allow to remain open or to close a trading business. An example of this would be where a business, not in compliance with planning or health and safety conditions attached to a licence and therefore impacting the environment in which it operates, has its licence revoked by Revenue. Whether in fact Revenue exercises this discretion is irrelevant. The key point is that Revenue has the legislative authority to allow a fuel business to trade or not to trade, and, in consequence, to affect the environment of the locality in which the business is situated.
58. In its submissions to this Office, Revenue maintains that no environmental information is required for applications for mineral oil licences, as this information is not sought by Revenue as part of the application process. It states, further, that environmental factors as set out in the AIE Regulations are not included in the conditions under which a mineral oil licence is granted.
59. Revenue maintains that it has no regulatory or enforcement role in the matters of “Planning, Health and Safety and Fire Safety” and that matters concerning compliance with the regulatory regimes “are strictly a matter for the relevant competent authorities.” Notwithstanding this statement, the manual at paragraph 4.6, “Non-Compliance with Licence Conditions”, provides expressly that a Revenue officer engaged in determining whether a trader is in compliance with Revenue conditions attaching to an AFTL/MFTL “may take into consideration the various statutory authorities’ requirements” set out in the manual including in relation to planning approval, fire safety and health and safety, adding that “it is important to note that it is the Revenue officer who makes this determination and not the relevant Regulatory Authority” (emphasis added). This means that, while regulatory authorities in the spheres of planning authorisations and fire and health and safety, have competence to regulate and make determinations in respect of matters within their competence, Revenue, nonetheless, despite its protestations, has in its possession the discretion to take into consideration compliance with those same matters in determining whether to grant or deny an AFT or MFT licence to a trader.
60. The website of the fuel depot in this case notes that it supplies home heating oil, agricultural fuels, commercial fuels, lubricants and tanks to domestic and commercial customers in areas in three different counties. The website notes that it supplies fuel to 10,000 homes. It would therefore appear clear that there is a large quantity of fossil fuels stored on the premises. The sale and consumption of fossil fuels affects the environment due to the emissions created from such use. The depot provides a delivery service, which clearly involves the coming and going of trucks of a substantial size holding oil from the premises to homes and businesses in three counties. I consider that due to the nature of the business selling fossil fuels and the scale of the operation in question that the operation of a fuel depot, which is enabled by the granting of the relevant license, affects or is likely to affect the environment.
61. The discretion in granting a license effectively gives a veto to Revenue such as to refuse a licence to a fuel trader who fails to comply with one or other of the requirements associated with the granting of a licence. Put simply, Revenue has the discretion, given appropriate circumstances, either to allow the continued operation, or to bring about the closure of a fuel trading business, depending on whether compliance with any of the aforementioned matters are being complied with, or not, and thus to affect the environment of the locality in which the fuel depot is situated.
62. The granting of a license requires evidence of planning approval to operate as a commercial fuel outlet, compliance with fire safety requirements, a site specific safety statement and evidence of a licence obtained from the local authority under the Dangerous Substances (Flammable Liquids and Fuels Distribution and Commercial Supply Stores) Regulations 2019 [S.I.631/2019, the Dangerous Substances Regulations, operative from 1 April 2020]. The Explanatory Note at the end of the Dangerous Substances Regulations sums up succinctly their import in the current discussion. It states that “[t]he purpose of the Regulations is to prevent risk of injury arising from the keeping, conveying, loading and unloading of flammable liquids or fuels at fuel stores” and adds that “[t]hese Regulations lay down rules which provide for the licensing, operation and inspection of such fuel stores, for the purpose of prevention of risk arising from the storage of flammable liquids and fuels, and to seek to limit as far as possible the consequences for human health and the environment arising from the operation of such stores” [emphasis added]. Therefore, while other regulatory bodies have a role to play in the spheres of their competence, Revenue has a further key function when determining the outcome of fuel licence applications in verifying compliance by fuel sites with planning approval, fire and health and safety as well as compliance with the provisions of the Dangerous Substances Regulations. This function provides Revenue with a regulatory avenue to have a direct impact or effect on the environment, as it provides for Revenue to stipulate and monitor conditions for the operation of a licence in those spheres and to revoke or refuse a licence when it is not satisfied with compliance. In light of all of the above, I am satisfied that the AFT and MFT licensing process is a measure within the meaning of paragraph (c) of the definition of environmental information. Absent a licence from Revenue, the business cannot operate. I have found above that there is a real and substantial possibility that the operation of the depot will affect the environment.
Whether the information sought is information “on” the measure
63. The next step in the analysis is to determine whether the information sought is “on” the measure, in this case Revenue’s mineral oil licencing process, a matter to which I now turn.
64. In the context of whether information is “on” a measure or activity affecting or likely to affect the elements and factors of the environment, the High Court judgment in ESB indicated that information that is integral to the relevant measure or activity is information “on” it (ESB at paragraphs 38, 40 and 41), while information that is too remote from the relevant measure or activity does not qualify as environmental information (ESB at paragraph 43). Again in the context of article 3(1)(c), 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 (paragraph 99; see also ESB at paragraph 42 and Right to Know (RTÉ) at paragraph 52). 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; see also Right to Know (RTÉ) at paragraph 52).
65. It is appropriate briefly to assess the information held by Revenue that is relevant to these appeals in order to determine whether it is “on” the measure of Revenue to approve or deny licences. It consists of the site inspection report and accompanying checklist, an email thread comprising communications between Revenue and the relevant local authority and a report of oil movements at the fuel depot. The site inspection report is the result of a site inspection visit by Revenue officials to the fuel depot, the owners of which must secure an annual mineral oil licence for their activities from Revenue. The visit, together with the report, form an integral part of Revenue’s licence approval procedure. I am of the view, therefore, that they are integral to the measure in question. The content of the email between Revenue and the local authority concerns matters related to planning permission, fire safety and health and safety, matters that are covered in the Mineral Oil Traders’ Excise Licences Manual that contains the process to be followed by Revenue officials before they issue AFT and MFT licences to fuel traders. The content of the email is, therefore, integral to the “measure” and, in my view, is “on” the measure. The Reports of Oil Movements (ROMs) record movements of oil at fuel depots, both incoming and outgoing, and are a record of sales. According to the Revenue website, these reports must be filed monthly by traders. Importantly, it also makes reference to the standard conditions attached to licences, one of which is the “keeping and furnishing of records”, including the monthly submission of the ROMs. As this is a condition to be complied with by traders, it means that non-compliance can lead to the withdrawal of a licence. Consequently, the ROMs are integral to the “measure” undertaken by Revenue and, in my view, are “on” that measure.
66. I note, in conclusion, that the appellant’s requests encompass information “on” such matters as “reports of all inspections”, “correspondence between the Revenue Commissioners and all [the local authority] Departments … regarding [the fuel depot’s] Licences [and] Planning Permission” and “all Reports confirming sale or purchase of Kerosene, Diesel and Petrol by [the fuel depot]. This information aligns with the information held by Revenue and described in the paragraph above. As it is all related to Revenue’s mineral oil licencing process, which I have established is a “measure” within the definition of that term in article 3(1)(c) of the AIE Regulations, I consider the information sought by the appellant to be “on” the measure and therefore to be environmental information within the meaning of the regulations.
67. That being the case, Revenue must release the requested information unless it can rely on any of the exemptions in the AIE Regulations.
Article 8(a)(iv) of the AIE Regulations
68. In its submissions, Revenue asserts that the information requested by the appellant is exempt from release by virtue of article 8(a)(iv) of the AIE Regulations.
69. Article 8(a)(iv) of the AIE Regulations provides for refusal of environmental information “where disclosure of the information would adversely affect…the confidentiality of proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts)”.
70. A number of elements must be satisfied before the question of refusal under article 8(a)(iv) arises:
• the case must involve the “proceedings” of public authorities;
• those proceedings must have an element of confidentiality;
• that confidentiality must be adversely affected by the disclosure of the information requested; and
• that confidentiality must be protected by law.
71. In considering the application of article 8(a)(iv) to these appeals, the first step is to define the relevant “proceedings”. The CJEU in Flachglas Torgau Gmbh v Federal Republic of Germany Case C-204/09 defined the concept of proceedings as the “final stages of the decision-making process of public authorities” (at paragraph 63). A similar conclusion was reached by the CJEU in Saint Gobain Glass Deutschland GmbH v European Commission Case C-60/15 P. Although that case dealt with Regulations 1049/2001 and 1367/2006, rather than the current AIE Directive, it considered the provisions of the Aarhus Convention on which both the AIE Directive and the AIE Regulations are based. The Advocate General commented at paragraph 51 of his opinion that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures”. The Court in that case also commented that the concept of a decision-making process should only refer to the actual making of the decision, and not to the entire administrative procedure leading to the decision (para. 81, emphasis added).
72. In its submissions, Revenue has not specifically identified the relevant proceedings, but states that the proceedings of Revenue are confidential as they involve the collection and processing of taxpayer information. Revenue states that, as confidential taxpayer information is protected by law from unauthorised disclosure to third parties under section 851A of the TCA 1997, and as section 41(1) of the FOI Act 2014 provides for the non-disclosure of a record where the disclosure is prohibited by the law of the European Union or any enactment (in this case the TCA 1997), the records fall within the embrace of section 851A and are not excluded from this protection by the application of the second limb of section 41(1) of the FOI Act, which excludes enactments specified in Parts 1 and 2 of Schedule 3 of that Act. Section 851 of the TCA 1997 is not included in said Schedule 3 of the FOI Act. As noted above (see paragraph 41), Revenue relies also on section 35(1) of the FOI Act to refuse to release information relevant to the first paragraph of the appellant’s second request, a provision that mandates public bodies to refuse to grant an FOI request if a record was given to it in confidence.
73. There has been no attempt by Revenue to narrow down its understanding of ‘proceedings’ to any specific “deliberation stage of decision-making procedures.” It appears to contend that all stages of the collecting and processing of taxpayer information falls within the meaning of the term “proceedings” in the article. As indicated in the Saint Gobain case (at paragraph 71, see above), this is an incorrect approach. I am of the view that the relevant “proceedings” in respect of these appeals relate to the AFT and MFT licensing process. However, the records provided to this Office by Revenue do not give any insight into the final deliberative stages of that decision-making process, e.g. whether or not to grant the licences. I also note that the exemption provided for in this provision does not protect the decision itself in a decision-making process. Revenue’s reliance on this exemption, therefore, falls, as it has failed to identify how the release of the information sought could adversely affect the confidentiality of the final stages of the decision-making process in question. I note for the record that Revenue has made three submissions to this Office since these appeals were submitted by the appellant, and that in none, nor in its original and internal review decision letters to the appellant, has it attempted to define the deliberation stage of its decision-making procedures in accordance with article 8(a)(iv) of the AIE Regulations. It has had ample opportunity to correct this deficit. Accordingly, as the first limb of the exemption, the identification of “proceedings”, has not been identified, it is not necessary for me to consider the other elements of the exemption and I find that article 8(a)(iv) does not apply to the information sought.
74. Revenue also appears to have conflated its understanding of “proceedings” in article 8(a)(iv) with “confidential taxpayer information” as it associates the collection and processing of taxpayer information (its ‘proceedings’) with the confidentiality of that information. Reliance on the confidentiality of personal information, including taxpayer information, has more appropriate alignment with the exemption at 8(a)(i) of the AIE Regulations, which provides for refusal of environmental information “where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law”.
75. As this is a de novo review of Revenue’s decision to refuse to release information, I may also consider whether the exemption at article 8(a)(i) applies to the information sought on the basis that its disclosure would adversely affect the confidentiality of the personal information of the taxpayer in question where this is protected by the TCA 1997. However, the appellant has expressly indicated to this Office that, in respect of the two appeals, they have no requirement to be provided with any personal taxpayer information relating to the fuel trading business in question, including VAT numbers, invoice numbers, taxes paid, tax identification numbers or customer or supplier details. This being the case, there is no requirement for Revenue to release such information, which can be redacted from any information it may voluntarily or be directed to release.
76. Prior to my directing release of the information, I have given careful consideration to the submissions of the third party. While the third party objects to the release of the information sought, no basis under the AIE Regulations has been made for the refusal of the request.
77. As I have found that article 8(a)(iv) does not apply in these appeals, there is no requirement for me to consider the provisions of article 10 of the AIE Regulations.
Conclusion
78. In conclusion, I find that the information sought is environmental information within the meaning of article 3(1)(c) of the AIE Regulations. Revenue’s discretion to grant a licence effectively gives it the ability to refuse a licence to a fuel trader who fails to comply with one or other of the requirements associated with the granting of a licence and therefore to affect the environment of the locality in which the fuel depot is situated. I find that article 8(a)(iv) does not apply to the information sought, and that neither the presence of any personal information, nor the objection made by the third party provides any basis for the refusal of the information sought. I note that the appellant has excluded any personal taxpayer information relating to the fuel trading business in question, including VAT numbers, invoice numbers, taxes paid, tax identification numbers or customer or supplier details from the scope of the request.
79. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the decision of Revenue and direct release of the information sought.
80. 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