Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-100993-X1G6Q1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether information on the costs of legal proceedings issued by Coillte under article 13(1) of the AIE Regulations is “environmental information” within the meaning of article 3(1) of the Regulations
1. On 1 October 2020, the appellant submitted a request to Coillte for “a record of how much was spent in legal fees on the following cases by Coillte:
• This decision by the OCEI: https://www.ocei.ie/decisions/new-decision-4/index.xml
• The High Court case 2018/453 MCA”.
2. By way of background, the proceedings referenced in the appellant’s request involved an appeal by Right to Know to my Office in Case CEI/17/0022 on the issue of whether the identities of purchasers of land from Coillte amounted to environmental information. I issued a decision on that case in 11 October 2018 in which I annulled Coillte's decision that the identity of purchasers of land was not environmental information. In December 2018, Coillte initiated proceedings in the High Court, appealing my decision on a point of law, in accordance with article 13(1) of the AIE Regulations. The High Court proceedings were ultimately settled in May 2020.
3. As such, the appellant’s request was for information on the legal fees incurred by Coillte in respect of my decision of 18 December 2018 in Case CEI/17/0022 and the legal proceedings initiated by Coillte in the High Court appealing that decision.
4. Coillte responded to the appellant’s request on 30 October 2020. It firstly informed the appellant that no legal fees had been incurred by it in relation to my decision in Case CEI/17/0022 such that the only information at issue was information relating to legal fees incurred in the High Court proceedings (referred to in this decision as the “legal proceedings”). Coillte informed the appellant that it did not consider that information to be “environmental information” within the meaning of article 3(1) of the AIE Regulations.
5. The appellant sought an internal review of Coillte’s original decision on 2 November 2020. On 6 November 2020, the appellant emailed Coillte stating that my Office had released information to the appellant about the legal fees incurred by my Office in relation to the legal proceedings listed in the appellant’s request. The appellant submitted that “[t]his demonstrates that [the Office of the Commissioner for Environmental Information] believe this is environmental information for the purposes of the AIE Regulations” and asked that this be considered as part of the internal review.
6. On 4 December 2020, Coillte provided the outcome of its internal review to the appellant. The internal review, which upheld the original decision, can be summarised as follows:
(i) Coillte considered that the only possible element of the definition of environmental information which could apply to the information concerned was article 3(1)(c) of the Regulations.
(ii) While Coillte accepted that the AIE Regulations themselves are a measure designed to protect the elements and factors of the environment listed in the definition of environmental information, it did not consider that any measure or activity which was in some way connected, even tangentially, to a measure or activity which does come within the scope of article 3(1)(c) could in itself meet the definition of environmental information.
(iii) Coillte considered that the measure at issue in this case was the legal proceedings initiated by it in respect of a decision of the Commissioner for Environmental Information relating to the application of the definition of environmental information to the particular circumstances of that appeal.
(iv) Coillte noted that the purpose of the legal proceedings was to clarify or confirm the legal interpretation of a key element of the AIE Regulations. As such, Coillte considered that it could not be said that the legal proceedings could, in themselves, affect in any way the elements and factors of the environment nor could it be said that those legal proceedings were designed to protect the elements and factors of the environment.
(v) Coillte noted that if such proceedings could be characterised as a measure or activity, the only possible purpose which such proceedings could have, in line with the wording of article 13(1) of the Regulations, was to provide legal clarification on a point of law. As such, Coillte was of the view that the information requested was information on legal proceedings, and that those legal proceedings did not meet the definition of environmental information in article 3(1)(c).
7. The appellant appealed to my Office on 8 December 2020.
8. Coillte has identified one document which contains information within the scope of the appellant’s request. A copy of this document has been provided to my Office. Coillte has refused access to the information requested by the appellant on the basis that such information is not “environmental information” within the meaning of article 3(1) of the AIE Regulations.
9. Accordingly, my review in this case is concerned with whether or not the information requested is “environmental information” within the meaning of the Regulations.
10. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. Article 3(1) 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)”.
11. In its appeal to my Office on 8 December 2020, the appellant submitted that the information requested was clearly environmental in nature as it related to a case involving the AIE Regulations. It also referred to the release by my Office, on foot of a separate AIE request, of information on the costs incurred in relation to the same legal proceedings.
12. The appellant made submissions to my Office in support of its appeal, which can be summarised as follows:
(i) The appellant argued that any legal proceedings that are designed to reduce/curtail access to environmental information for citizens are a measure likely to have an impact on the environment, such that the costs associated with the legal proceedings at issue in this case were clearly environmental information.
(ii) The appellant submitted that any information in relation to litigation on matters relating to the AIE regulations must be environmental information by default.
(iii) It submitted that I had already determined that information on the Aarhus Convention comes under 3(1)(c) in CEI/16/0025 Dr Fred Logue and Department of the Environment, Community and Local Government and that I had accepted that the AIE Regulations are measures as per 3(1)(c) in OCE-93406-G5Y0Y0 Right to Know CLG and Department of Communications, Climate Action and the Environment.
(iv) It also submitted that the phrase "information on" must be interpreted purposively and there should be accountability around costs incurred by Coillte in relation to what the appellant characterised as an attempt by Coillte “to keep environmental information hidden from the public”.
(v) The appellant argued that the above approach was in line with a purposive interpretation of the Regulations, and it was difficult to see any harm that could result from the disclosure of this information. The appellant was of the view that this had already been demonstrated by the release of the same information by my Office.
13. Coillte provided submissions to my Office on 25 March 2021 which may be summarised as follows:
(i) Coillte considered that the only element of the definition of environmental information which could possibly be engaged by the appellant’s request was Article 3(1)(c) of the Regulations.
(ii) Coillte noted that the information sought by the appellant was information 'on' legal proceedings concerning the interpretation of an aspect of the AIE Regulations. Coillte therefore submitted that the “measure” at issue was those legal proceedings and that those legal proceedings could not be considered a measure within the meaning of article 3(1)(c) for the following reasons:
(a) The purpose of the legal proceedings was merely to seek clarification from the Court on the application of existing legislation. Coillte’s position therefore was that the legal proceedings were not a measure affecting or capable of affecting the factors and elements of the environment referred to in articles 3(1)(a) and (b) of the Regulations, as the measure in question which could potentially affect the elements of the environment was the enactment of that legislation, and not any court proceedings seeking to interpret that legislation.
(b) Coillte argued that the legal proceedings, which were taken pursuant to Article 13(1) of the Regulations, were a “measure” or “activity” designed to interpret the laws enacted by the relevant Parliament, not to protect the environment and, as such, neither were those proceedings a measure or activity designed to protect the environment.
(c) Coillte referred to p 54 of the Aarhus Guide which notes that “activities or measures do not need to be a part of some category of decision-making labelled “environmental”. The test is whether the activities or measures may have an effect on the environment”. Coillte submitted that while it may be fair to say that information which is not in any sense labelled as “environmental” may constitute an activity or measure within the scope of the Regulations, equally it is fair to say that information which is concerning an activity or measure which may be labelled as a “case relating to the AIE Regulations” may not come within the scope of the Regulations.
(d) Coillte submitted that the concept of “measure” or “activity” as used in the Regulations and in Directive 2003/04/EC is directed towards administrative actions (be they public or private), and not legislative or judicial actions. It relied on article 3(2) of the Regulations in support of its position in this respect, which provides that “notwithstanding anything in sub-article (1), in these Regulations “public authority” does not include — (e) any body when acting in a judicial or legislative capacity”. Coillte also relied on the opinion of the Advocate General in C-321/96 Mecklenburg v Kreis Pinneberg and, in particular, on the comments made by the Advocate General at paragraph 14 of that Opinion which are as follows:
"The term 'measure' employed by the Community legislature reflects the need to include within the acts governed by the Directive even the most diverse forms in which administrative activity is carried on. However, this does not mean that, as the defendant erroneously maintains, a 'measure' in the sense intended by the Community legislature corresponds solely to acts which may have an impact upon particular legal situations by regulating their effects. On close inspection, it can be seen that the Directive is not solely concerned with administrative measures in a technical sense, against which it is possible to bring a legal action or raise other forms of claim in accordance with the procedures prescribed by law. On the contrary, the 'measure' to which the Directive refers must here be given its true meaning, that is, the result of administrative action lacking in specified characteristics." (emphasis added)
(e) Coillte argued that legal proceedings at issue in this case were akin to the 'measures of control' in case Case C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen, which the CJEU found were not measures affecting, likely to affect or designed to protect the elements and factors of the environment.
(f) Coillte argued that, following the Court of Appeal in Redmond v Commissioner for Environmental Information [2020] IECA 83, in order for a measure or activity to be found to be likely to affect the elements of the environment there must be a real and substantial possibility that those measures or activities will affect the environment, directly or indirectly. Coillte submitted that any potential effects on the environment resulting from the legal proceedings in question could only be in the context of the undertaking of further measures or activities by some other person or organisation taken on foot of the outcome of the initial measure or activity. Coillte’s position was that this would be a “remote or theoretical possibility” rather than the “real and substantial possibility” which the Court of Appeal found was required. Coillte submitted that this view was supported by the Court of Appeal's analysis in Minch v Commissioner for Environmental Information [2017] IECA 223, where the Court looking “objectively” at the “measure” in question found that what was in issue was a plan "affecting, or likely to affect" the environment and that the National Broadband Plan "discussed a variety of options each of which would have significant environmental impacts"
14. My Investigator wrote to the appellant on 14 April 2021 to advise it of Coillte’s position as set out in its submissions and provide the appellant with an opportunity to respond. The appellant’s response was as follows:
(i) The appellant again argued that a purposive approach to the interpretation of the AIE Regulations was required and that the interpretation argued for in its submissions was in line with such a purposive approach.
(ii) The appellant submitted that there were, in fact, a number of potential “measures” or “activities” at issue in this case. It argued that information on the cost of legal proceedings was indirectly on Coillte’s activities generally given that Coillte has finite resources which means that money spent on litigation is money that wasn’t spent on environmental activities including activities to protect the environment. It also argued that the AIE Regulations themselves were a measure within the meaning of article 3(1)(c) and that any information on those measures, including costs incurred by a public authority such as Coillte in litigation relating to the Regulations, is environmental information.
(iii) The appellant refuted Coillte’s contention that the Advocate General’s opinion in C321/96 Mecklenburg v Kreis Pinneberg lent support to its argument that the concept of “measure” or “activity” as used in the Regulations and in Directive 2003/04/EC is directed towards administrative actions (be they public or private), and not legislative or judicial actions. The appellant submitted that Mecklenburg found that the concept of “measure” was broad and encompassed all forms of administrative activity.
(iv) Finally, the appellant noted that this Office had disclosed the same information to it pursuant to an AIE request. It argued that, given that this Office already accepted that information of this category was environmental information it would be irrational and inconsistent for me to find otherwise in this case.
15. On 20 April 2021, the High Court issued its decision in Right to Know v Commissioner for Environmental Information & RTÉ (Unreported, High Court, Barrett J, 20 April 2021) in which it considered the interpretation of article 3(1)(c) of the AIE Regulations. My Investigator considered that the RTÉ judgment may have implications for the present case and therefore wrote to the parties to provide them with an opportunity to comment on it.
16. The appellant’s response to this request argued that the RTÉ decision was consistent with its previous submissions. It submitted that the decision confirmed that the word “measure” was to be construed broadly and that the decision maker can look beyond what the information requested is immediately “on”. The appellant also submitted that when considering the word "on", the focus should not be on the contents of the information but instead on the measure itself and that where there is a "temporal manifestation", then a measure or activity has graduated beyond merely being an academic exercise or thought experiment. The appellant noted in this regard that the legal proceedings in this case were brought, conceded and the costs incurred in relation to those proceedings were paid. It therefore submitted that it was not credible to suggest that Coillte’s activities or the AIE Directive itself were academic exercises or hypothetical.
17. Coillte’s position on this matter was that legal proceedings - while they might concern or have as their subject-matter, measures or activities - were not measures or activities within the meaning of article 3(1)(c) in themselves, but rather were sui generis and one step removed from such measures and activities. It made the following points in support of that position:
(i) With regard to proceedings under the AIE Regulations, Coillte argued that such proceedings would not expand or contract the extent of the environmental information to be made available thereunder because, by definition, the courts do not, and cannot under our Constitution, make law, but rather simply interpret and confirm what the law is, and how it applies to a particular factual situation. Coillte’s view was that legal proceedings per se do not have the capability of affecting the elements or factors of the environment, as they do not determine that any greater, or lesser, information should be made available than the AIE Regulations already ordain be made available.
(ii) Coillte argued that the distinction between legal proceedings, on the one hand, and the actual measure or activity they may concern, on the other, was akin to the distinction drawn by the CJEU in Case C-316/01Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen between the control-measures (which the Court found did not come within the scope of the definition contained in the predecessor to article 2(1)(c) of the current AIE Directive and article 3(1)(c) of the Regulations), on the one hand, and the activity of marketing of foodstuffs containing GMOs (which the Court accepted was an activity or measure likely to affect the environment), on the other. Coillte submitted that, like the measures of control in Glawischnig, the legal proceedings in this case which concern activities or measures which, for their part, might be capable (for argument’s sake) of affecting one or more of the environmental factors, do not generally fall within article 3(1)(c) such that even if the AIE Regulations are a “measure” capable of affecting the environment, legal proceedings relating to their proper interpretation and application in a particular case are not such a measure (or activity).
18. In response to specific queries from my Investigator as to the purpose of the legal proceedings, Coillte noted:
(i) that its position with regard to the legal proceedings was that the Commissioner had erred in law in concluding in Case CEI/17/0022 that information relating to the identity of purchasers of land from Coillte was “environmental information” within the meaning of article 3(1) of the AIE Regulations which should be made available to the requester in that case, such that the Commissioner’s decision in that regard should be set aside; and
(ii) that the result Coillte was seeking to achieve was to have the Court confirm the true extent of the rights and obligations of the parties under the AIE Regulations, believing that the Commissioner’s decision had incorrectly determined these as a matter of law. Coillte noted in that regard that while the AIE Regulations are one governance measure it must ensure it abides by appropriately, it must also bear its other duties in mind. As such, Coillte submitted that apart from it being entitled, and it being appropriate, in certain cases to ensure that a decision of the Commissioner does in fact correctly determine in law what information it must make available under the AIE Regulations, Coillte is also under a duty to ensure that it obtains Court confirmation in cases of doubt, so that it does not make available information that the AIE Regulations did not, on a definitive legal analysis, intend to be made available, whether generally and/or because it might unduly affect the legitimate interests of Coillte and/or a third party, or third parties, and was not in the public interest.
19. Coillte also made the following points in response to the issues raised by the appellant:
(i) Coillte submitted that, as a matter of law, the manner in which an AIE request is framed “casts the die” in terms of what “measure” or “activity” the Commissioner can determine the information requested to be “on”. Coillte noted that the appellant’s request was on how much was spent in legal fees by Coillte in the legal proceedings (i.e. the High Court case 2018/453 MCA). It submitted, on that basis, that the only potential “measure” or “activity” which could be considered by me was those legal proceedings and it was not now open to the appellant to argue that the information it was seeking was information on Coillte’s activities more generally or information on the AIE Regulations.
(ii) Without prejudice to that position, Coillte submitted that the argument that information on the cost of the legal proceedings is not merely information “on” those proceedings but also information “on” Coillte’s ordinary activities generally, was misconceived. It accepted that much of its activities were related to the environment (albeit not all), but submitted that information on the costs of the legal proceedings could not be considered information “on” Coillte’s general activities relating to the environment as it was not directly related to those activities. Coillte submitted that the AIE Regulations required that the information requested be sufficiently specifically related to an identified, tangible measure/activity and did not provide for a right of access to information on measures or activities that the authority might have adopted or engaged in, but did not. Coillte also submitted that it was factually incorrect of the appellant to suggest that money spent by Coillte on litigation is money that wasn’t spent on environmental activities or that could have been applied to activities with better environmental outcomes. In support of its position, Coillte noted that both at the time of the legal proceedings in question and at the time of the making of its submissions, it had substantial and sufficient financial resources available to it, and had not in any way been fettered by financial constraints from carrying out all relevant environmental measures or activities in accordance with its statutory duties.
(iii) With regard to the appellant’s contention that information on the cost of the legal proceedings could also be considered to be information on the AIE Regulations themselves, Coillte (while not explicitly conceding that the AIE Regulations were in fact a “measure” within the meaning of article 3(1)(c)) argued that the information requested should not be considered information “on” the AIE Regulations having regard to the test set out in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which had been cited with approval by the Irish Courts. Coillte submitted that applying the test in Henney to the information on legal costs at issue here, it could not be said, in the relevant factual and contextual matrix, that the information, properly speaking, was “on” the Regulations, in the sense of being about, relating to, or concerning the measure in question. Coillte argued that legal costs information relating to the legal proceedings was in no way “integral”, “critical” to, or a “key element” of the achievement of the objectives of the AIE Regulations.
(iv) In response to the appellant’s arguments as to the import of Mecklenburg, Coillte reiterated its position that there must be some actual administrative activity in the nature of the measures non-exhaustively instanced in Article 3(1)(c), rather than legal proceedings relating to any such potential administrative activity. It argued that the Advocate-General appeared to advert to this distinction himself at paragraph 14 of his decision, in referring to “…administrative measures … against which it is possible to bring a legal action or raise other forms of claim in accordance with the procedures prescribed by law.” Coillte further submitted that whilst the Advocate-General referred to “measures” as being broader than such “technical” or “formal” measures against which it is possible to bring legal action, the point remained that he clearly adverted to “measures” on the one hand, and the bringing of legal proceedings against such measures, on the other, and as being separate and distinct concepts. Coillte submitted therefore that the former were within the scope of Article 3(1)(c), while the latter were not.
20. I have now completed my 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 Coillte. I have also examined the contents of the information at issue. 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 IECA [2020] 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ).
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB and RTÉ.
• the decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg) and C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig)
• 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).
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Impact of the decision of my Office to release information on the costs incurred by it in relation to the legal proceedings
21. I consider it appropriate to remark briefly, at this juncture, on the decision of my Office to release information on legal fees incurred by my Office, following a request for such information under the AIE Regulations. Although this may seem to be a technical point, I consider it important to point out that an administrative decision by my Office to provide information pursuant to an AIE request is not the same as a binding decision by me, pursuant to article 12 of the Regulations, that information is environmental information. As such, I do not consider that I must conclude that the information at issue in this case is “environmental information” merely because my Office released information to the appellant in relation to the costs incurred by it in the same legal proceedings nor do I consider that my failure to do so would, in and of itself, cause my decision to be irrational or inconsistent.
Are the legal proceedings a “measure” or “activity” within the meaning of article 3(1)(c) of the Regulations?
22. I must now consider whether the requested information (i.e. information on the cost of legal proceedings commenced by Coillte bearing High Court reference number 2018/453 MCA) is “environmental information” within the meaning of article 3(1) of the AIE Regulations. Both parties are agreed that the relevant provision in this case is article 3(1)(c) which provides that “information on … 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 [articles 3(1)(a) and 3(1)(b)] as well as measures or activities designed to protect those elements” is “environmental information”.
23. It seems to me therefore that the first question to be addressed is whether it can be said that the legal proceedings are a “measure” or “activity” within the meaning of article 3(1)(c) of the Regulations.
24. Coillte has argued that the concept of “measure” or “activity” under article 3(1)(c) of the Regulations is not broad enough to encompass legal proceedings and that legal proceedings are sui generis in nature, in that they are only capable of being related to a “measure” or “activity” within the meaning of article 3(1)(c) rather than constituting such a “measure” or “activity” in their own right.
25. I do not find support for that position in the Regulations or the Directive, nor do I find it in the case law of either the Irish or EU courts. In arguing that legal proceedings are sui generis, Coillte seeks to take those proceedings outside of the scope of article 3(1)(c) in their entirety. The logical consequence of this, it seems to me, is that information on legal proceedings could never be “environmental information”. This would be akin to a blanket exemption and would not, in my view, accord with the purpose of the Regulations and the Directive, which sets out at Recital 1 that “increased public access to environmental information and the dissemination of such information contribute 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 Directive also provides, at Recital 16 that “the right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”.
26. I also note the comments of the CJEU in Mecklenberg on this subject, a case referred to by both the appellant and Coillte in support of their arguments. 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 environmental management programmes'. The wording of the provision makes it clear that the Community legislature intended to make that concept a broad one, embracing both information and activities relating to the state of those aspects.
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 included all forms of administrative activity.”
27. In his recent decision in RTÉ, Barrett J. remarked that “the European Court of Justice could not have taken a more expansive view of what comprises an administrative measure for the purposes of the 1990 directive” (paragraph 19). Barrett J. also noted that Recital 2 of the current AIE Directive should be borne in mind when approaching case-law which is concerned with Directive 90/313/EEC, the predecessor to the current AIE Directive (RTÉ, paragraph 7). Recital 2 of the AIE Directive provides as follows:
“Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment initiated a process of change in the manner in which public authorities approach the issue of openness and transparency, establishing measures for the exercise of the right of public access to environmental information which should be developed and continued. This Directive expands the existing access granted under Directive 90/313/EEC….”
28. Barrett J. therefore noted that the case-law relating to the predecessor of the current AIE Directive “is concerned with a regime that is more restrictive in terms of contemplated access than the regime established under the AIE Directive, i.e. Directive 2003/4”. The Court also considered the reference in Recital 2 to the 1990 Directive, as the Directive having “initiated a process of change”, to be noteworthy. Barrett J. concluded that “what had been in play over the course of the lifetime of that directive and its more recent successor is an evolutionary process”, the consequence being that “one must approach the current directive as being not just expansive but increasingly so” (RTÉ, paragraph 8).
29. A final point of relevance in this regard can be found in Barrett J.’s remarks on Recital 10 of the AIE Directive, on which he stated that it was “difficult to conceive of how the Community legislature could have taken a more expansive approach to the scope of the concept of “environmental information”” (RTÉ, paragraph 9).
30. It is difficult to reconcile such an expansive approach with an argument that legal proceedings are a sui generis category, incapable by their nature, of constituting a “measure” or “activity” within the meaning of article 3(1)(c) of the Regulations, particularly in circumstances where such a blanket exclusion would need to be implied given that there is no explicit reference to legal proceedings in the AIE Regulations or the AIE Directive which would support the interpretation proposed by Coillte.
31. Barrett J’s remarks should also be noted with regard to Coillte’s arguments on the import of the decision of the CJEU in Glawischnig as that case also concerned the predecessor of the current AIE Directive. As outlined at paragraph 18(v) above, Coillte has argued that that the distinction between legal proceedings, on the one hand, and the actual measure or activity they may concern, on the other, was akin to the distinction drawn by the CJEU in Glawischnig between control-measures (which the Court found did not come within the scope of the definition contained in the predecessor to article 2(1)(c) of the current AIE Directive and article 3(1)(c) of the Regulations), on the one hand, and the activity of marketing of foodstuffs containing GMOs (which the Court accepted was an activity or measure likely to affect the environment), on the other. However, as outlined above, a more expansive approach should be taken as to the scope of the current AIE Directive.
32. It is also important to have regard to the particularities of the decision in that case. In Glawischnig the appellant had sought information relating to non-compliance with legal requirements for the labelling of food products containing genetically modified substances, including the names of the manufacturers and products which had been the subject of complaints for failure to comply with those requirements and details as to the penalties imposed in respect of such non-compliance (referred to in the decision as “measures of control”). The Court of Justice found that “information on measures of control does not generally fall within [the] category [of activities or measures affecting or likely to affect the state of the environment], even if those controls concern activities or measures which for their part affect or are likely to affect one or more of the environmental factors” (emphasis added). As such, the Court of Justice considered that the information on measures of control at issue in Glawischnig did not come within the “second category” of the definition of “environmental information” as set out in Article 2(a) of Directive 90/313 (the predecessor to article 2(1)(c) of the current AIE Directive and article 3(1)(c) of the Regulations) and that it was unlikely that such information would fall into that category. However, the Court did not definitively state that all information on control measures was incapable of being an activity or measure affecting, likely to affect or designed to protect the environment. As such, while I note that the decision in Glawischnig has been relied on by subsequent Courts (in particular by the Irish Courts in recent years in cases such as Minch and Redmond) as authority for the proposition that the AIE regime is not intended to confer “a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned [in the Directive]” (see Glawischnig, paragraph 25), I am not convinced it can be relied upon to exclude legal proceedings in their entirety from the scope of the AIE regime. I must therefore go on to consider whether the particular legal proceedings at issue in this case constitute a “measure” or “activity” within the meaning of article 3(1)(c) of the Regulations.
33. The Aarhus Guide notes that the Aarhus Convention expressly includes “administrative measures, environmental agreements, policies, legislation, plans and programmes” when referring to “measures” and “activities” likely to affect the environment in the context of its definition of “environmental information”. Similar wording is used in article 2(1)(c) of the AIE Directive and article 3(1)(c) of the AIE Regulations. The Aarhus Guide notes that the use of these terms suggests that some degree of human action is required. The Guide also describes the terms "activities or measures", as referring to "decisions on specific activities, such as permits, licences, permissions that have or may have an effect on the environment". The Court of Appeal in Minch was of the view that the reference to “plans” and “policies” in article 3(1)(c) is significant, and suggests 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” (paragraph 39). Hogan J went on to explain that this requirement for there to be a plan or something in the nature of a plan, curtails a potentially open-ended or indefinite right of access to documents (paragraph 41). If this were not the case, then virtually any information held by or for a public authority referring, either directly or indirectly, to environmental matters would be environmental information. This would run contrary to the CJEU’s judgment in Glawischnig (paragraph 21; see also Glawischnig at paragraph 25).
34. As noted above, the CJEU in Mecklenburg stated at paragraph 20 of its judgment that “the use in Article 2(a) of the [previous] 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 included all forms of administrative activity”.
35. In his decision in RTÉ, Barrett J considered that although the CJEU in Mecklenburg did not consider the term “activity”, it was more than reasonable to assume that a similarly expansive approach would be taken by the European Court of Justice to the interpretation of what constitutes a “measure” as that which the European Court has previously taken as regards what constitutes an “activity”. Barrett J also noted that the word “activity” itself was defined in the Oxford English Dictionary as the “state of being actively occupied” (RTÉ, paragraph 19).
36. As the appellant has pointed out, the potential “measure” or “activity” at issue here is legal proceedings which were initiated and settled and in respect of which costs have been incurred. I am therefore of the view that the legal proceedings were prima facie both a “measure” and an “activity” within the meaning of article 3(1)(c) of the Regulations (i.e. they will be a measure and activity if I consider they were likely to affect the environment).
37. The next question is whether those legal proceedings affect or are likely to affect the environment, thus satisfying the next limb of the definition in article 3(1)(c). The Court of Appeal in Redmond found that an 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, noted that while it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required. He explained 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)” (Redmond at paragraph 63).
38. Coillte’s position is that the legal proceedings do not have the capability of affecting the elements or factors of the environment as they do not determine that any greater, or lesser, information should be made available than the AIE Regulations already ordain be made available. However, in my view, this argument risks oversimplifying matters. It is of course the case that the Courts interpret rather than create legislation and this is a fundamental aspect of the separation of powers. However, this does not mean that the interpretation of legislation and its application to particular facts is a straightforward matter with a certain outcome. If that were the case, there would be no need to seek the Court’s view on the matter but as Hogan J noted in Minch “real life throws up examples which are more complex than the drafters of legislation and statutory instruments may originally have envisaged or provided for in the legislative text” (see paragraph 38). Indeed, it is clear that in the instant case what the AIE Regulations “ordained” was a matter of debate between the parties. As Coillte noted itself in its submissions to my Office dated 14 May 2021, it considers itself under an obligation to obtain confirmation from the Courts “in cases of doubt” as to the extent of its obligations under the AIE Regulations so that those obligations can be balanced with its other duties. Thus, one of the principal purposes of the proceedings was to seek guidance from the Court as to what the AIE Regulations in fact “ordained” having regard to the circumstances of the case and Coillte, in bringing those proceedings, was seeking to persuade the Court that what the Regulations ordained was a narrower interpretation of environmental information than that which I had adopted in my decision in Case CEI/17/0022.
39. In order to better understand the nature of the legal proceedings at issue in this case it is necessary to take a step back from the proceedings themselves and to examine the wider context in which those proceedings were brought. As Coillte has pointed out, Article 13(1) of the AIE Regulations provides that “a party to an appeal under article 12 [i.e. an appeal to the Commissioner] or any other person affected by the decision of the Commissioner may appeal to the High Court on a point of law from the decision”. Article 13(2) provides that “an appeal…shall be initiated not later than 2 months after notice of the decision [of the Commissioner] was given to the parties”. However, articles 12(7) and 12(8) are also of relevance here. Article 12(7) provides that “a public authority shall comply with a decision of the Commissioner…within 3 weeks after its receipt”. Article 12(8) provides that “where a public authority fails to comply with a decision of the Commissioner within the period specified in [article 12(7)], the Commissioner may apply to the High Court for an order directing the public authority to comply with that decision and, on the hearing of such an application, the High Court may grant such relief accordingly”. The import of articles 12(7) and 12(8) is that where an appeal to the High Court is not initiated within the two-month timeframe provided for in article 13(2), the decision of the Commissioner becomes legally binding and it is open to the Commissioner to seek an order compelling compliance in the event of any non-compliance by a public authority.
40. There were thus two courses of action open to Coillte once it received notice of my decision. The first was to accept that the information was “environmental information” and process the appellant’s request in accordance with the AIE Regulations (i.e. by deciding whether it should be disclosed to the appellant or whether any grounds for refusal existed in respect of some or all of the information requested). The second was to appeal my decision on a point of law to the High Court in accordance with article 13 of the Regulations. Coillte chose the second option, and initiated proceedings in which it sought to argue that a narrow interpretation of the definition of “environmental information” than that adopted by me in my decision, should be applied.
41. There is no doubt that Coillte was entitled to initiate the legal proceedings in question and my analysis should not be read as a questioning its bona fides in doing so. However, this does not mean the legal proceedings themselves were not likely to affect the environment. I consider this to be the case for the following reasons:
(i) The decision to initiate the proceedings led to a delay in the processing of the applicant’s AIE request for information in relation to the identity of purchasers of land held by Coillte (which was subsequently accepted as being “environmental information”). Again, I must reiterate that the AIE Regulations provide for this process. However, it should be noted that the underlying ethos 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”. In my view, therefore, it should be recognised that a delay in reaching a decision on the disclosure of environmental information by Coillte gives rise to more than a remote or theoretical possibility that elements and factors of the environment referred to in articles 3(1)(a) and 3(1)(b) of the Regulations may be affected as it may inhibit the free exchange of views and effective public participation envisaged by the AIE regime. As noted in my decision in Case CEI/17/0022 (to which the legal proceedings at issue in this case relate) access to the identity of the purchasers of lands held by Coillte may enable the public to participate in environmental related decision-making and can support accountability and transparency in such decision-making. For example, if it were the case that information as to the identity of the purchasers revealed that one such purchaser was a person or entity with a history of non-compliance with planning permissions, this might lead to greater public scrutiny of such transfers by Coillte than might be the case if the purchaser were revealed to be a private or public actor with significant experience in management of forests and woodlands.
(ii) Secondly, as Coillte notes in its submissions, it initiated the legal proceedings on the basis that it considered my decision to be potentially unlawful “in requiring Coillte to make available information to the requester that it was not legally required to make available under the AIE Regulations”. Coillte was seeking to argue, in those legal 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, as Coillte accepts, have a significant environmental aspect to them. Coillte has also noted in its submissions that it received advice that there were grounds on which to challenge the decision. I think it is therefore reasonable to infer that at the time it initiated the proceedings, Coillte considered there was a real and substantial possibility of success, otherwise it would presumably not have spent resources in respect of them.
42. As such, I am satisfied that the legal proceedings were both a measure and activity likely to affect the environment within the meaning of article 3(1)(c) of the Regulations.
Is the information requested, information “on” the legal proceedings?
43. I must now address the question of whether “a record of how much was spent in legal fees” on the legal proceedings constitutes information “on” the legal proceedings within the meaning of article 3(1) of the Regulations.
44. 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 case, information that is integral to the relevant measure or activity is information “on” it, while information that is too remote from the relevant measure or activity does not qualify as environmental information (see paragraphs 38, 40, 41 and 43). 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 recent RTÉ case (see paragraph 52).
45. I am satisfied that information concerning the cost of legal proceedings is information which is integral to those proceedings and is not at such a remove from such proceedings to render it too remote. As such, I am satisfied that the information requested is information “on” a “measure” and “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.
46. It is therefore not necessary for me to comment further as to whether the information requested was information on Coillte’s activities more generally or information on the AIE Regulations and whether it could be said that those activities and the Regulations can be considered “measures” or “activities” within the meaning of article 3(1)(c) of the Regulations.
47. Having carried out a review under article 12(5) of the AIE Regulations, I annul Coillte’s decision that the information requested did not constitute “environmental information” within the meaning of article 3(1) of the AIE Regulations. This matter is therefore remitted to Coillte who should process the appellant’s request in accordance with the AIE Regulations.
48. 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.
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Peter Tyndall
Commissioner for Environmental Information