Cinneadh
Dr. Fred Logue and Bord na Móna
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147500-T7Z1M3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147500-T7Z1M3
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 BnM:
(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. On 27 January 2024, BnM provided a decision on each part of the appellant’s request. In respect of part (1), it identified one (1) record as coming within the scope of the request and released same to the appellant, with certain redactions, “in addition to the personal data of applicants in accordance with Article 8(a)(iv) of the AIE Regulations and GDPR”. In respect of parts (2), (3) and (4), it stated that no records existed in respect of these parts of the request. In respect of part (5), it stated that BnM did not consider that information to be “environmental information” within the meaning of article 3(1) of the AIE Regulations.
4. In terms of part (5), BnM outlined its reasons for that decision to the appellant, as follows:
(i) BnM considered that information regarding its spending on external legal advice relating to AIE requests, appeals and litigation is not material on the state of the elements of the environment in accordance with article 3(1)(a) of the definition of environmental information, nor does it involve factors affecting or likely to affect the elements of the environment pursuant to article 3(1)(b) or reports on the implementation of environmental legislation, in accordance with article 3(1)(d). Further, BnM considered that such documentation is not captured by article 3(1)(e) or (f), involving neither cost-benefit nor other economic analyses or assumptions, nor in any way concerning the state of human health and safety, conditions of human life, cultural sites or built structures.
(ii) BnM submitted that the only basis upon which such documentation could constitute environmental information is under article 3(1)(c). When considering this category, BnM referred to the Court of Appeal’s judgment in Redmond v. Commissioner for Environmental Information [2020] IECA 83 (Redmond) and the need, in the first instance, to examine the measure in question and not the information on that measure.
(iii) BnM submitted that the measure/activity in respect of part (5) of the appellant’s request is the payment by BnM to external legal advisers for legal services in respect of AIE litigation. In this context, it submitted that this is not a measure/activity in respect of which there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. It submitted: “Payment for such external legal services is simply a financial transaction, involving the transfer of funds from [BnM] to such external legal advisers. It has no environmental impact whatsoever, beyond the purely remote or theoretical.”
(iv) BnM noted case law, including Department for Business, Energy and Industrial Strategy v. Information Commissioner [2017] EWCA (Civ) 844) (Henney), which, in its view, suggested that article 3(1)(c) should be read-down by reference to the purpose of the AIE Directive and the Aarhus Convention. In this regard, it stated that it had considered the purpose for which the information was produced and whether access to it would enable members of the public to be better informed or better able to contribute to environmental decision making. BnM considered that the purpose for which information regarding the payment of external legal advisers was produced was to enable such advisers to be paid for services rendered. It submitted: “Records of such payments do not and cannot have any influence on decision making on the environment, the decision to pay such legal advisers not constituting a decision on the environment.”
5. On 27 January 2024, the appellant submitted a request for internal review to BnM. In this correspondence, the appellant outlined his view that the Commissioner for Environmental Information had already determined that legal costs relating to environmental litigation, which would include AIE appeals to the OCEI, was environmental information. The appellant referenced cases OCE-100993-X1G6Q1 (Mr. Ken Foxe, Right to Know CLG and Coillte Teoranta (Coillte)) and OCE-136880-Q2N3W3 (FP Logue Solicitors c/o Dr Fred Logue and An Bord Pleanála).
6. On 27 February 2024, BnM provided the outcome of its internal review to the appellant. The internal review was confined to the decision in respect of part (5) of the request only and it upheld the original decision, with reasons which are summarised as follows:
(i) BnM noted the cases referenced by the appellant. It outlined its view that OCE-136880-Q2N3W3 was not relevant as there was no consideration given to whether the information requested was environmental information.
(ii) BnM acknowledged that in OCE-100993-X1G6Q1, the Commissioner had accepted that information in relation to legal fees in respect of a High Court appeal of AIE proceedings was environmental information. However, it stated that this decision must now be viewed in light of the recent judgment of Heslin J. in ESB v. Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2), which considered what constitutes environmental information in accordance with article 3(1)(c) of the definition and in particular, whether information is ‘on’ a measure or activity.
(iii) BnM submitted that the only record that exists in relation to part (5) of the request is a fee remittance in relation to counsel’s fees in respect of High Court proceedings involving an appeal from a decision of the Commissioner under the AIE Regulations. BnM reiterated its position that the relevant measure/activity is the payment by BnM to counsel for legal services provided in respect of AIE litigation. However, it also considered that even if the measure/activity were to sweep broader, so as to involve an appeal under the AIE Regulations, this would not in any way change the position, as, in BnM’s view, in neither circumstance is there a real and substantial possibility that such measure/activity will affect the environment, whether directly or indirectly. It submitted: “In respect of the former, payment to counsel in respect of litigation is in no way capable of affecting the elements of the environment, factors affecting those elements nor is designed to protect such elements. Similarly, an appeal under the AIE Regulations has none of these affects. Such an appeal relates solely to the interpretation of the Regulations.”
(iv) The internal reviewer also referenced the Henney case and submitted that the purpose for which the information regarding the payment of counsel was produced was to enable counsel to be paid for services rendered, and that it does not shape any environmental decision-making. BnM submitted that the CJEU has drawn a distinction between the aim of promoting effective participation in environmental decision-making and the promotion of public information in judicial matters. It referred to C-470/19 Friends of the Irish Environment Ltd v Commissioner for Environmental Information (Friends of the Irish Environment), at paragraphs 36 and 37, noting that promotion of public information in judicial matters and public involvement in decision-making in that area was not an aim of the AIE Directive or the Aarhus Convention.
(v) BnM submitted that, by applying the dicta in ESB No. 2, it was of the view that information regarding the fees paid to counsel arising out of a High Court appeal under the AIE Regulations is too remote or incidental from any measure/activity having environmental effects or designed for environmental protection, within the meaning of article 3(1)(c) of the AIE Regulations.
7. The appellant brought an appeal to this Office on 16 March 2024.
8. On 12 April 2024, BnM was provided with a copy of the appellant’s statement of appeal and was requested to forward, within six (6) weeks or by 27 May 2024, both the subject matter information/records and a final submission in support of its decision in this case.
9. 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 require the public authority to make available environmental information to the appellant.
10. The powers of the Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. It is clear from BnM’s internal review decision, along with it correspondence with this Office, that it is BnM’s position that the information sought at part (5) of the appellant’s request is not “environmental information” such that it falls outside the scope of the AIE Regulations.
11. 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.
12. Accordingly, I am satisfied that it is appropriate to limit the scope of this review to whether BnM 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.
Status of requested information
13. As per this Office’s standard procedures, BnM was requested to provide a copy of the subject matter information/records in this matter for the purposes of this review. In response, BnM provided a schedule listing one (1) record which it had identified in relation to part (5) of the request, that being a fee remittance for counsel’s fees in respect of High Court proceedings involving an appeal from a decision of the Commissioner under the AIE Regulations. BnM did not furnish this Office with a copy of this record, noting that the fee remittance contains sensitive personal information, namely bank account details. However, it also noted that if sight of the record was required in order to determine this appeal, a redacted version could be provided.
14. It is the Commissioner’s view that it is appropriate to decide on a case by case basis whether it is essential for this Office to review the entire content of the requested information before determining whether it is environmental information.
15. In many cases the content of the requested information will be highly relevant to the determination. This is one of the reasons why, in most cases, the Commissioner will require the public authority to make the requested information available to this Office for the purposes of my review. In other cases, the information requested will not itself be intrinsically environmental and the question will be whether the information requested is information ‘on’ a different measure or activity which is likely to affect the environment. In such cases examination of the entire content of the requested information may be unnecessary. I am satisfied that this review falls into the latter category of cases and that I was able to carry out my review without reviewing the requested information.
Submissions of the parties
16. In his appeal dated 16 March 2024, which was received by this Office on 19 March 2024, the appellant submitted that the information requested was necessary for his client’s communication to the ACCC in relation to the prohibitive costs of appeals (case ACCC/C/2023/199). The appellant made further submissions to this Office on 16 April 2024 in support of this appeal, which are summarised below.
17. 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.
18. 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.
19. 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.
20. The appellant referred to the definition of “environmental information” in Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ). He submitted that the required analysis is fact specific and a purposive approach to interpretation should be used having regard to the objectives of the Aarhus Convention and the AIE Directive, particularly in marginal cases. The appellant submitted that “the public authority rejected the request on the basis that the legal costs was not a measure under category (c) of the definition in Regulation 3(1)”. He submitted that “the public authority misinterpreted the AIE Regulations and did not identify the correct measure, which in this case is the AIE Regulations and the Aarhus Convention… The question of whether information is on a measure is one of whether it is about, relates to or concerns that measure.”
21. The appellant submitted that this Office has already held, in cases CEI/12/0008 (Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht) and OCE-93406-G5Y0Y0 (Right to Know CLG and Department of Communications, Climate Action and the Environment), that the AIE Regulations come within the concept of measures designed to protect the environment and therefore are within category (c). He further submitted that per the decision in ESB No. 2, this Office ought to follow its earlier decisions unless there is good reason not to.
22. 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.
23. 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.
24. The appellant submitted that this Office has already held, in cases OCE-100993-X1G6Q1 and OCE-136880-Q2N3W3, that legal costs are capable of being environmental information. He submitted that there is no material difference between the current case and these earlier cases to distinguish them, such that the current request is not environmental information. The appellant argued that the logic in these cases doesn’t mean that legal costs are environmental information only because the legal action causes delay.
25. The appellant submitted that the decision of the High Court in ESB No. 2 has no direct bearing on this appeal. He submitted that this was a fact specific finding and doesn’t read across into this appeal. In particular, he argued that in this case, the costs of appeals to the Commissioner is something which is directly relevant to the access to information and access to justice provisions of the Aarhus Convention as implemented in Ireland, which he submitted was not at issue in ESB No. 2.
26. The appellant also submitted that the judgment of the CJEU in Friends of the Irish Environment is not relevant here. He submitted that this was a case about whether the Courts Service was a public authority. He argued that the selected references to this judgment in BnM’s decision refer to the policy behind the option of excluding bodies acting in a judicial capacity from the scope of the definition of public authority, which he submitted is not the issue in this case.
27. BnM provided submissions to this Office on 12 June 2024, which reiterated the main aspects of its internal review decision. In summary, it submitted that there is not a real and substantial possibility of information regarding legal costs affecting the environment, either directly or indirectly and that the information at issue “is too remote, incidental or theoretical in terms of any environmental effect”.
28. On 12 September 2024, the investigator assigned to this case wrote to BnM and provided a summary of the appellant’s submissions to this Office dated 16 April 2024. BnM 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 BnM could be considered a measure within the meaning of article 3(1)(c) of the AIE Regulations, in cognisance of the finding in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), including that "likely to affect" the environment should really be understood in the sense of being "capable of affecting” the environment.
29. On 23 October 2024, BnM provided further submissions to this Office, which are summarised below.
30. BnM submitted that the issue of the costs of appeals to this Office is not relevant to it in the context of this appeal, nevertheless it also submitted that the appellant’s arguments in this regard are based on a fundamental flaw. BnM argued that the only costs implications for an appellant in respect of an appeal to this Office relate to the appeal fee, which currently stands at €50, with a reduced fee of €15 payable in the case of a medical card holder or the dependent of a medical card holder. It submitted that there is no provision within the AIE Regulations for the awarding of costs against an unsuccessful appellant in an appeal before the Commissioner and therefore, there is no risk of an appellant being exposed to an adverse costs order. It argued that, “in such circumstances it is axiomatic that the costs of an appeal to the Commissioner are not prohibitively expensive, unless it could be successfully argued that the application fee itself is, it being the only costs exposure of an appellant”. Therefore, it submitted, that access to information regarding the costs incurred by public authorities in respect of such appeals could in no way be said to advance public participation in environmental decision making.
31. BnM submitted that it disagreed with the appellant’s categorisation of the measure in this case as, “the AIE Regulations and the Aarhus Convention”. It argued that this is an oversimplification of the concept of “measure” and, moreover, ignores the dicta in Henney cited with approval in ESB No. 2, to the effect that identifying the relevant measure might require consideration of the wider context, “including the purpose for which the information had been produced, how important the information was to that purpose, how it was used and whether access to it would enable the public to be better informed about, or to participate in, decision-making in a better way”. BnM submitted that, “it is implicit in this dictum that the concept of measure needs to be considered within the context of the public authority itself and more specifically, in the context of the record within the public authority and not in a generalised vacuum”.
32. BnM submitted that such an ill-defined definition of “measure” is contrary to the dicta of Hogan J. in the Court of Appeal in Minch, where the judge was of the view at paragraph 39, that the reference to “plans” and “policies” in article 3(1)(c) suggested that the “measure” or “activity” in question must have “graduated from simply being an academic thought experiment into something more definite such as a plan, policy or programme – however tentative, aspirational or conditional such a plan or policy might be – which, either intermediately or mediately, is likely to affect the environment”. It submitted that the court went on to conclude that that the requirement for there to be a plan or something in the nature of a plan, curtailed a potentially open-ended or indefinite right of access to documents, which would run contrary to the CJEU’s judgment in C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig).
33. BnM further submitted that it is illogical that the measure could be the Aarhus Convention, where the Convention is an international treaty, which confers no direct rights on individual members of the public. It submitted that a request for environmental information cannot be made to a public authority directly under the Aarhus Convention, but rather under the AIE Regulations, which transposed the AIE Directive which implemented the Convention in EU law. It argued that any alleged failure to implement the provisions of the Convention is a matter for the State, not individual public authorities. Therefore, it submitted, that it cannot be the case that the Convention could be a measure applicable to BnM in such circumstances.
34. BnM submitted that when one looks at the context of the record in this case, the relevant measure is the payment to external legal advisers for legal services rendered in respect of AIE litigation. It submitted that even if one takes a broader view, that the widest the measure could sweep would be BnM’s response to AIE requests/appeals. However, it submitted that such an interpretation does not follow if one considers the purpose for which the record was created, namely to enable the payment of counsel.
35. BnM noted the following decisions of this Office referenced in the appellant’s submissions, (CEI/12/0008 and OCE-93406-G5Y0Y0) and asserted by the appellant as holding that the AIE Regulations come within the concept of measures designed to protect the environment within the meaning of category (c) of article 3(1) of the AIE Regulations.
36. With regard to CEI/12/0008, BnM submitted that the appellant had misrepresented the actual findings of this case. It argued that the Commissioner actually qualified her acceptance that the AIE Regulations and Directive are measures designed to protect the elements of the environment, stating that it was “in an indirect and aspirational manner only.” BnM notes that the Commissioner went on to find: “It does not follow, however, that any administrative action taken by public authorities under AIE is itself a measure or activity affecting or likely to affect the environment; nor is such administrative action necessarily a measure or activity designed to protect the environment.” BnM submitted that ultimately, the Commissioner did not accept that, “the processing of AIE requests by public authorities is itself "designed" to protect the elements of the environment or that it otherwise qualifies as a measure or activity within the meaning of paragraph (c) of the environmental information definition.”
37. In OCE-93406-G5Y0Y0, BnM noted that there was no analysis or exploration of article 3(1)(c) and, as such, it submitted this case reference is of limited significance or precedential value.
38. BnM contended that the measure in the current case is the payment to external legal advisers for legal services rendered in respect of AIE litigation, which is not designed to protect the elements of the environment. It submitted that in considering whether the measure is designed to protect the elements of the environment, the context and purpose of the measure within the public authority is relevant. BnM submitted that in CEI/12/0008, the measure identified by the Commissioner was more limited than as contended by the appellant in this case, namely the processing of AIE requests by public authorities. BnM argued that in that case the Commissioner was not of the view that this was a measure designed to protect the environment. It argued similarly, that if one was to adopt a more expansive view of the measure in this case, finding it to be BnM’s response to AIE requests/appeals, it submitted that such responses could not on any reasonable interpretation be considered to be designed to protect the elements of the environment.
39. BnM submitted that even if it was accepted that the measure/activity is designed to protect the elements of the environment, it is necessary to go on to consider whether the information in question is “on” the measure. It submitted that if one was to accept an interpretation of the measure in this case as being BnM’s response to AIE requests/appeals, BnM’s position is that a fee remittance to counsel in respect of legal fees incurred by BnM in respect of a High Court appeal is not “on” that measure. It argued that such information is too remote or incidental from how BnM responds to AIE requests/appeals and is therefore not “on” it. It submitted that payment of counsel’s fees is an incidental aspect of BnM’s response to AIE requests/appeals and is not critical to how BnM responds.
40. BnM submitted that, “the appellant, in seeking to establish that the record the subject of this appeal is “on” the measure he has identified, being the AIE Regulations and the Aarhus Convention, has focused heavily on the issue of costs and financial barriers to the exercise of environmental rights under the Aarhus Convention”. It argued that such focus is misplaced, firstly on the basis it cannot be the case that the measure in question is the Aarhus Convention. It also submitted that none of the provisions referred to by the appellant relate to the costs of legal proceedings before the courts. In addition, it submitted that, “the appellant has ignored the fundamental fact that the legal costs the subject of the record in this case were costs exclusively incurred on behalf of [BnM]”. It further submitted that, in any such appeal to the High Court by a public authority against a decision of the Commissioner for Environmental Information, the parties are the public authority and the Commissioner, not the requester of the information, and such requester can only be joined as a notice party to the proceedings upon application by order of the Court.
41. BnM submitted that the appellant has failed to address whether, “there is a real and substantial possibility that it [the measure/activity] will affect the environment, whether directly or indirectly”, per Redmond. It argued that, “it is quite evident there is not a real and substantial possibility that information regarding payment to counsel in respect of a High Court appeal under the AIE Regulations (and/or [BnM]’s response to AIE requests/appeals) would affect the environment either directly or indirectly”.
42. BnM submitted that each individual AIE request needs to be considered on its own facts and in the context of the information held by or for a public authority, and as such it submitted that, “previous decisions of the Commissioner for Environmental Information need to be approached with caution as there may be material differences in the factual matrix”.
43. In respect of OCE-136880-Q2N3W3, BnM submitted that the issue of whether or not the information the subject of the request (a breakdown of legal costs relating to judicial review cases where the final bill was settled), was environmental information was not the subject of argument before the Commissioner, nor was it considered in any way by the Commissioner nor the subject of any findings in this regard. Further, it submitted that the information in question in that case is not the same as at issue here, where the single record involved is a fee remittance to counsel in respect of a High Court appeal under the AIE Regulations.
44. In respect of OCE-100993-X1G6Q1, BnM submitted that the Commissioner’s findings need to be revisited in light of the High Court judgment in [2024] IEHC 17, which applied the dicta in Henney, same having previously been accepted in this jurisdiction in Redmond. BnM submitted that in OCE-100993-X1G6Q1, the Commissioner focused on the purpose of the measure (which in that case was agreed to be legal proceedings initiated and settled and in respect of which costs had been incurred), whereas the court in ESB No. 2 makes it clear that the purpose for which the information was produced must be considered. In addition, BnM submitted that the decision in OCE-100993-X1G6Q1 did not consider in any detail whether or not the information on the legal costs was “on” the measure, whereas in ESB No. 2, in BnM’s view, this was a critical aspect of the Court’s reasoning. BnM also argued that the basis upon which the Commissioner identified the legal proceedings as having an environmental impact in this case, involved the delay in the processing of the applicant’s request, which the Commissioner found may inhibit the free exchange of views and effective public participation envisaged by the AIE regime. Additionally, BnM, outlined its understanding that the Commissioner considered that as the legal proceedings were initiated by Coillte on the basis that it considered the Commissioner’s decision was potentially unlawful in requiring it to make available information it was not legally required to make available under the AIE Regulations, Coillte was therefore seeking to argue in those proceedings for an interpretation of the AIE Regulations which would narrow the extent of the information it would be required to make publicly available in relation to its activities, which Coillte accepted had a significant environmental impact to them.
45. BnM submitted that the wording of paragraph (c) of the definition of environmental information, wherein it refers to the measure or activity, “affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b)”, requires an analysis of environmental impact by reference to the factors and elements of the environment. It submitted that these elements are specified in paragraph (b) of article 3(1) in illustrative terms involving, “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”. It submitted that these factors are similarly described in illustrative terms as follows, “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.” BnM argued, therefore, that the environmental impact needs to relate to the elements or factors of the environment. It submitted: “It is difficult to see how an indirect effect in terms of a potential inhibition on the free exchange of views or effective public participation in decision making or a narrowing of the extent of information required to be made publicly available by a public authority has any impact on environmental elements and factors so defined above, much less a “real and substantial possibility” as required by Redmond. It is submitted that the payment of legal costs is not a decision which affects environmental elements or factors.”
46. BnM submitted that the decision in ESB No. 2 is clearly relevant as it relates to the interpretation of the paragraph (c) of the definition of environmental information. It submitted that the principles laid down in this case “bind and guide the Commissioner in his interpretation of the AIE Regulations”. BnM also submitted that, “the general principle as enunciated by the CJEU in [Friends of the Irish Environment], that there is a distinction between the promotion of effective participation in environmental decision-making and effective participation in judicial matters, which is not an aim of the AIE Directive or the Aarhus Convention, is not limited to cases where a body is acting in a judicial capacity”.
47. In relation to the investigator’s preliminary view, that the implementation of the AIE Regulations by BnM could be considered a measure within the meaning of article 3(1)(c) of the AIE Regulations, BnM submitted that it does not agree with this view. It further submitted that this is not a measure “affecting or likely to affect the elements and factors” of the environment or which is “designed to protect those elements” as is required by article 3(1)(c). It argued that the focus in any such analysis must be the affect/impact on the elements and factors of the environment and it submitted that there is no such affect/impact involved in the implementation of AIE legislation by public authorities.
48. BnM submitted that the payment of legal costs in respect of litigation by a public authority does not involve any environmental decision-making and that it is incidental to how a public authority may implement AIE legislation. It argued that such payment of legal costs does not in any way enable or advance public participation in environmental decision making and, as such, it is clearly not “on” the measure as is required by article 3(1)(c) of the AIE Regulations.
49. 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 BnM. 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’).
50. 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”
51. 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)”
52. 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
53. 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).
54. 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).
55. BnM contends that the relevant measure in respect of part (5) of the request is “the payment by BnM to external legal advisers for legal services in respect of AIE litigation”. BnM’s positon is that the payment of legal costs does not in any way enable or advance public participation in environmental decision making and, as such, it is clearly not “on” the measure as is required by article 3(1)(c) of the AIE Regulations.
56. BnM submits that the wording of paragraph (c) of article 3(1), wherein it refers to the measure or activity, “affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b)”, requires an analysis of environmental impact by reference to the factors and elements of the environment. BnM has argued that the payment of legal costs does not have any impact on the environmental elements and factors referred to in paragraphs (a) and (b) of article 3(1), much less a “real and substantial possibility” as required by Redmond. It submits that the payment of legal costs is not a decision which affects said environmental elements or factors.
57. I do not agree with the above approach by BnM, having regard to the comments of the CJEU in Mecklenburg on the scope of “environmental information”, In paragraphs 19 and 20 of its decision, the CJEU noted:
“[19] It must be noted in the first place that Article 2(a) of the directive includes under 'information relating to the environment' any information on the state of the various aspects of the environment mentioned therein as well as on activities or measures which may adversely affect or protect those aspects, 'including administrative measures and
[20] Secondly, the use in Article 2(a) of the directive of the term ‘including’ indicates that 'administrative measures' is merely an example of the ‘activities’ or ‘measures’ covered by the directive. As the Advocate General pointed out in paragraph 15 of his Opinion, the Community legislature purposely avoided giving any definition of ‘information relating to the environment’ which could lead to the exclusion of any of the activities engaged in by the public authorities, the term ‘measures’ serving merely to make it clear that the acts governed by the directive includedall forms of administrative activity .” (emphasis added)
58. I consider that the measure chosen by BnM in analysing whether the information sought is environmental information is overly narrow. In my view, the relevant measure is the implementation of the AIE Regulations by BnM. This is the case in respect of all parts of the appellant’s AIE request, which I view as interrelated. Furthermore, I note the findings in Minch which included that "likely to affect" the environment in paragraph (c) should really be understood in the sense of being "capable of affecting” the environment. In this context, I consider that information concerning the manner in which a public body such as BnM implements this legislation, could be considered capable of impacting on public participatory activities; participation which advances the purposes of the Aarhus Convention and the Directive. I will elaborate on my considerations below.
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
59. 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).
60. The spirit and intent of the AIE regime, 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”. Providing access to environmental information is even more pertinent for public bodies such as BnM involved directly with operations in the natural environment. According to its website, BnM describes itself an “Irish, semi-state a climate solutions company helping lead Ireland towards a climate neutral future”. It states that its climate solutions “cover renewable energy, recycling, waste management, carbon sequestration and biodiversity conservation.” It further notes “[a]ll Bord na Móna’s activities are focused on helping Ireland to achieve its climate goals.” The AIE Regulations and perhaps more so, the manner in which the Regulations are implemented by public bodies such as BnM, 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.
61. In a recent decision of this Office, OCE-128538-M9C1X7 (Right To Know CLG and Bord na Móna), I considered the legislative background underpinning the operations of Bord na Móna. In that decision, I also set out how it is evident that there is a real and substantial possibility that many of the operations of BnM and its subsidiary/associated companies (including: energy generation, recycling, waste management, peatlands restoration and rehabilitation, partnerships to develop new approaches to climate action, and infrastructure development) will affect the environment in a significant manner.
62. It is clear to me that the operations of BnM are inherently environmental and 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, for example, due to their nature as components of the energy and waste sectors; the work, materials, emissions, pollution, waste, water, transport, fuel, and land-use changes involved in undertaking them, their interaction with nature and biodiversity; and/or their role in the low carbon transition. It follows therefore that BnM holds vast amounts of environmental information, access to which is important to enable members of the public to know and understand what is happening in the environment around them and effectively participate in environmental decision-making.
63. BnM has argued that the judgment of Heslin J. in the High Court in ESB No. 2 supports its view that information regarding the fees paid to counsel arising out of a High Court appeal under the AIE Regulations is too remote or incidental from any measure/activity having environmental effects or designed for environmental protection, within the meaning of article 3(1)(c) of the AIE Regulations. BnM also notes that in Friends of the Irish Environment, the courts have drawn a distinction between the aim of promoting effective participation in environmental decision-making and the promotion of public information in judicial matters and public involvement in decision making in that area. On this basis, I understand that BnM is seeking to argue that the information sought in this case can also be considered similarly detached from relevant public participatory activities and outside of the scope of article 3(1)(c). However, I do not agree that this conclusion can be drawn from these judgments. To agree with this would be akin to creating a blanket exemption for information concerning or related to court proceedings or quasi-judicial processes. This would not, in my view, accord with the purpose of the Regulations and the Directive and each case must be addressed on its own particular facts.
64. In relation to the 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”.
65. 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.”
66. Thus the implementation of the AIE Regulations by a body such as BnM 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”
67. 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.
68. The nature of BnM’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.
69. 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,”
70. Accordingly, I am satisfied that the implementation of the AIE Regulations by BnM 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.
71. I understand that this is a departure from the conclusion of a previous Commissioner in CEI/12/0008. In ESB No. 2 the High Court overturned a decision of this Office on a number of bases, including that the Commissioner had departed from a previous decision without giving adequate reasons for this change of position.
72. 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.
73. 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 BnM 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.
74. 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.
75. 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 BnM 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.
76. 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
77. 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).
78. 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.
79. I note in its submissions that BnM refers to the purposive test as articulated in Henney. 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.
80. BnM has argued that the payment of counsel’s fees is an incidental aspect of BnM’s response to AIE requests/appeals and is not critical to how BnM responds. However, I consider that the purpose and outcome of any engagement on BnM’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.
81. BnM’s submissions to this Office did not specifically 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. However, BnM did note its view that access to information regarding the costs incurred by public authorities in respect of such appeals could in no way be said to advance public participation in environmental decision making.
82. 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.
83. 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’).
84. I consider that the type of information sought by the appellant, including the information sought at part (5) of the appellant’s request, 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 BnM regularly consider it necessary to engage external lawyers in order to correctly apply the legislation (other than on an exceptional basis). In this case, BnM state that only one record exists in relation to part (5) of the request, namely a single fee remittance in relation to counsel’s fees, which may mean that BnM specifically does not regularly consider it necessary to engage external lawyers in relation to AIE matters. This does not affect my findings in this regard. The information sought is relevant to the appellant’s efforts to fully participate in the communication to the Committee as it shows the extent to which public authorities such as BnM engage external legal resources in respect of AIE matters, regardless of how often BnM as an individual public authority actually does in fact engage such external lawyers.
85. In addition, I consider that the costs of engaging external legal advice relating to AIE requests, appeals and litigation at part (5) of the AIE request is information ‘on’ the measure because it is information that gives an insight into BnM’s approach to its obligations. It also influences the approach that a requester must take if it is to successfully obtain environmental information from BnM 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 BnM suggests that legal advice or assistance is sought in relation to many of the AIE requests made to BnM, 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.
86. I am therefore satisfied that information concerning the costs of engaging external legal services for legal advice relating to AIE requests, appeals and litigation is information that is on the implementation of the AIE Regulations by BnM and is not at such a remove from this measure to render it too remote. As such, I am satisfied that 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. On that basis, I am remitting the matter to BnM for consideration of release of the information requested in accordance with the provisions of the AIE Regulations.
87. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I hereby annul BnM’s internal review decision in this case and I direct it to provide the appellant with a new internal review decision in respect of the request.
88. 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