Cinneadh
Dr Fred Logue and Irish Aviation Authority
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146159-Q8C2G1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146159-Q8C2G1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
18 December 2024
1. On 28 December 2023, the appellant made the following request under the AIE Regulations to the IAA:
(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. No response was received from the IAA. On 29 January 2024, the appellant sought an internal review.
4. The IAA responded to the appellant’s request 2 February 2024, as follows:
“The information you have requested does not fall within the scope of the AIE Regulations, as it primarily pertains to statistics and costs relating to appeals made to the Office of the Commissioner for Environmental Information against decisions made by IAA. While we appreciate your interest in accessing information, we must clarify that the AIE Regulations specifically pertain to information regarding the environment. As such, statistics and costs relating to appeals made to the Office of the Commissioner for Environmental Information against decisions made by IAA do not constitute information regarding the environment within the meaning of the AIE Regulations. Therefore, your request is refused under Article 7 of the Regulation.”
5. The appellant brought an appeal to this Office on 2 February 2024.
6. On 16 February 2024, the IAA was provided with a copy of the appellant’s statement of appeal and was requested to forward, within six (6) weeks or by 3 April 2024, both the subject matter information/records and a final submission in support of its decision in this case.
7. On 11 April 2024, the IAA provided submissions to this Office, including:
“… The decision of the IAA was based on an assessment of the request and determined that the information sought by [the appellant] was not information on the state of the elements of the environment, and neither was it information on factors affecting or likely to affect the elements of the environment.
It may be a matter of interpretation as to whether the information sought could be considered as measures affecting, or likely to affect, either of the abovementioned elements. While, it is accepted that any interpretation should favour disclosure, it is clear that the information could not be considered as administrative measures, such as policies, legislation, plans, programmes, environmental agreements, or environmental activities. The request in this instance falls beyond administrative measures of the nature described in the legislation.
It was also clear that the request did not involve reports on the implementation of environmental legislation, or a cost-benefit or other economic analyses and assumptions or the state of human health and safety.
For all the foregoing reasons, the IAA was of the view that the information sought by [the appellant] did not fall within the scope of the definition of ‘Environmental Information’ and refused the request.”
8. On 7 October 2024, the investigator assigned to this case provided the IAA with a summary of the appellant’s submissions to this Office dated 16 April 2024. The IAA 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 IAA 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, including that "likely to affect" the environment should really be understood in the sense of being "capable of affecting” the environment.
9. On 5 November 2024, the IAA advised, that having reviewed this Office’s correspondence, and the case law referenced therein, it had decided to release the information requested to the appellant.
10. On 19 November 2024, the IAA wrote to the appellant outlining its position, and provided a copy of this correspondence to this Office. It can be noted that this response identified a number of appeals within the scope of the appellant’s request and also indicated that the IAA did not engage external legal advisors for handling these appeals; therefore, no spend of external lawyers was recorded.
11. On 22 November 2024, the investigator wrote to the appellant to ascertain his current position in the matter. The appellant acknowledged the IAA’s varied decision, however requested that a binding decision from the Commissioner be issued as to whether the information sought is “environmental information” under article 3(1) of the AIE Regulations.
12. On 25 November 2024, the investigator wrote to the IAA, noting the appellant’s position and inviting any final submissions or comments in relation to the appeal.
13. Further submissions were received from the IAA on 2 December 2024.
14. The IAA submitted that, “The requested information has been provided and there is no dispute between the parties and the decision which the Commissioner is being asked to make is, in effect, moot.” It noted that the appellant still seeks a binding decision as to whether the information sought is "environmental information" under article 3(1) of the AIE Regulations. In this regard, it submitted that “[I] should exercise caution so as not to set a broad precedent if a determination is made in this matter given the nature of part 2 of the [appellant’s] request.
15. The IAA submitted that the appellant’s request relates to specific matters and queries whether, in effect, legal advice has been sought in relation to those matters. It submitted that whilst IAA has taken a pragmatic approach in confirming that no legal advice was sought, notwithstanding that such records did not exist at the time of the appellant’s request, IAA considered that there may be circumstances in which confirming whether or not legal advice has been obtained in an individual case could risk disclosing the substance of the advice depending on how the request is framed and the nature of the advice sought. In light of this, the IAA submitted that it therefore reserves its position in respect of any future requests of this nature and may consider whether any relevant exemptions apply to such requests.
16. The IAA made no comments in respect of the appellant’s submissions to this Office dated 16 April 2024, stating that “this does not appear to be relevant to the matter the Commissioner is being asked to determine in this case”.
17. 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.
18. The powers of the Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. Notwithstanding that information that had been withheld by the IAA in this case was released to the appellant during the course of this review; the IAA still appears to dispute that the information requested, if it were the case that external legal advisors had been engaged by it, is “environmental information” such that it falls outside the scope of the AIE Regulations.
19. 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.
20. Accordingly, I am satisfied that it is appropriate to limit the scope of this review to whether the IAA 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.
Position of the Parties
21. The appellant made submissions to this Office on 5 April 2024 in support of his appeal, which are summarised below.
22. 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.
23. 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.
24. 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.
25. 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 “IAA rejected the request on the basis that … [the] requested information did not pertain to information regarding the environment”. He submitted that “IAA misinterpreted the AIE Regulations and did not use the correct legal test for environmental information”.
26. 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).
27. 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.
28. 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.
29. The appellant submitted that this Office has already held, in 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), 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.
30. The IAA provided final submissions to this Office on 2 December 2024, as outlined above.
31. No substantive submissions were made by the IAA to support its position that the information requested by the appellant does not constitute “environmental information” within the definition provided at article 3(1) of the AIE Regulations.
32. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and by the IAA. 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’).
33. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Definition of “environmental information”
34. 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)”
35. 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
36. 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).
37. 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). The IAA has not indicated its understanding of what the relevant measure is concerning this request.
38. In my view, the relevant measure is the implementation of the AIE Regulations by the IAA. This is the case in respect of all parts of the appellant’s AIE request, which I view as interrelated.
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
39. 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).
40. 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 IAA, 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.
41. According to its website the IAA describes itself as a “commercial semi-state company (Designated Activity Company) and the single civil aviation regulator for Ireland… responsible for the regulation of safety, security and consumer interests”. It notes that its safety regulatory functions include:
• Certifying and registering aircraft airworthiness
• Licensing personnel and organisations involved in aircraft maintenance
• Licensing pilots, air traffic controllers and aerodromes
• Approving and monitoring air carrier operating standards.
• Registering drone operators
• Schedule coordination/slot allocation at Irish airports
• Licensing the travel trade in Ireland
• Licenses airlines and approval of ground handling services provider
• Monitoring and regulation of EU legislation covering Air Passenger Rights and the provision of assistance to Passengers with Reduced Mobility
• Oversight of civil aviation security
42. In the IAA’s Statement of Strategy 2023-2025, it notes:
“We must play our part in ensuring that Ireland meets its 2050 environmental targets & that aviation plays its role. The IAA will promote and enable improvements in the development of sustainable aviation fuels, more efficient aircraft and engine designs, and more efficient aircraft operations at aerodromes and in Irish airspace.”
43. In its published Annual Report for 2023, the Chief Executive Officer’s Review notes:
“Globally, the key challenge for aviation is how to decarbonise its activity as quickly as possible. While aviation is one of the most difficult sectors to decarbonise (due to the lack of alternative fuels available at scale), the industry has committed to a long-term goal of net-zero carbon by 2050, and this is also the aspirational goal adopted by member states of the International Civil Aviation Organisation, the UN body responsible for global aviation, of which Ireland and 192 other states are members.”
44. On this basis, it is clear that many of the activities of the aviation industry and the IAA itself affect or are likely to affect the elements of the environment referred to in paragraphs (a) and (b) of article 3(1) of the AIE Regulations. It follows therefore that the IAA holds environmental information, specifically in relation to the aviation industry, 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.
45. In the High Court’s recent judgment in ESB No. 2, Heslin J. was following Collins J. in Redmond, at para. 63, and approved the English decision of Beatson L.J. in Henney, that there must be “a real and substantial possibility that [the measure] will affect the environment, whether directly or indirectly”.
46. 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.”
47. Thus the implementation of the AIE Regulations by a body such as the IAA 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”
48. 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.
49. In my view, it is evident that there is a real and substantial possibility that many of the operations of the IAA will affect the environment in significant manner. Such operations will impact the environment, for example, due to the IAA’s role in achieving decarbonisation goals globally.
50. The nature of the IAA’s operations 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.
51. 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,”
52. Accordingly, I am satisfied that the implementation of the AIE Regulations by the IAA 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.
53. 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 given adequate reasons for this change of position.
54. 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.
55. 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 IAA 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.
56. 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.
57. 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 think that this is correct. What is at issue here is whether the AIE regime as implemented by the AIE 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.
58. 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
59. 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).
60. 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.
61. 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.
62. The purpose and outcome of any engagement on the IAA’s 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 would clearly serve 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.
63. The IAA’s submissions to this Office did not address 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.
64. 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.
65. 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’).
66. 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 IAA regularly consider it necessary to engage external lawyers in order to correctly apply the legislation (other than on an exceptional basis). Even where, as in this case, the IAA has indicated that they have not consulted with external lawyers, I consider that this information is nonetheless relevant to the appellant’s efforts to fully participate in the communication to the Committee as it shows the extent to which public authorities engage external lawyers, even if IAA as an individual public authority has not in fact required to engage external lawyers.
67. 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 IAA’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 IAA 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 IAA suggests that legal advice or assistance is sought in relation to many of the AIE requests made to the IAA, 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.
68. 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 IAA 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.
69. 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 IAA’s internal review decision in this case. As the IAA has released the requested information to the appellant, I make no further direction.
70. 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