Cinneadh
Mr X and The Irish Aviation Authority
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146456-H7Z7K5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146456-H7Z7K5
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the IAA was justified in refusing access to “information […] regarding operations from the new north runway at Dublin Airport” and “these new sids” on the basis that the information sought is not environmental information within the meaning of the definition in article 3(1) of the AIE Regulations.
16 April 2025
1. On 14 October 2023, the appellant made a request under the AIE Regulations for access to “information […] regarding operations from the new north runway at Dublin Airport” along with any information about what he referred to as “these new sids.” Given the context and content of the appellant’s AIE request, it would appear the appellant was referring to Standard Instrument Departures or SIDs, which the DAA describes as “[…] departure procedures established to ensure the safe and efficient departure of aircraft from an airport.”
2. It does not appear the IAA issued an original decision in response to the appellant’s request. On 17 November 2023 the appellant sought an internal review on the basis of the IAA’s deemed refusal of his request. Once again, it appears that the IAA failed to issue an internal review decision within the timeframe provided under the AIE Regulations.
3. The appellant appealed to my Office on 19 December 2023 on the basis of the IAA’s deemed refusal of his internal review request. The IAA issued a late internal review decision on 14 February 2024 in which it part granted access to two records, refusing access to “text that relates to aviation safety matters.” The appellant has indicated that he is dissatisfied with the IAA’s effective position.
4. I am directed by the Commissioner for Environmental Information 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 the IAA. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• the judgments of the Superior Courts 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) 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-279/12 Fish Legal and Shirley v Information Commissioner (Fish Legal); C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig), C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany (Flachglas); C-60/15 Saint-Gobain Glass Deutschland GmbH v European Commission (Saint Gobain) and C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg).
5. What follows may not comment or make findings on each and every argument advanced but all relevant points have been considered.
6. The Commissioner’s powers apply only in respect of environmental information held by or for a public authority. Where a public authority argues at the outset that the requested information is not environmental information, the general practice of this Office is to limit the review to the preliminary matter of whether the information at issue is “environmental information”, such that it falls within the remit of the AIE Regulations.
7. The IAA’s position in its late internal review decision/effective position letter was that some of the information sought by the appellant was not environmental information within the meaning of the AIE Regulations. Specifically, the IAA stated that it had removed “[…] text that relates to aviation safety matters, while retaining all information relating to the environment and environmental considerations.”
8. Accordingly, the scope of this appeal concerns whether the IAA was justified in refusing access to information concerning aviation safety matters on the basis that such information/records containing such information does/do not comprise or contain “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations.
Whether the records are environmental information
9. 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);”
10. 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. According to national and EU case law on the definition of “environmental information”, 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 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.
11. From his correspondence with this Office, it is clear that the appellant disagrees with the IAA’s position that aviation safety information does not comprise environmental information within the meaning of the definition at article 3(1) of the AIE Regulations.
12. In a very brief submission to this Office, the IAA stated that “[t]he non-environmental information was redacted, as it was related to aviation safety regulatory activities by the IAA” and was not information falling within the definition at article 3(1). In doing so, the IAA simply quoted paragraphs (a)-(f) of the definition of environmental information at article 3(1) of the AIE Regulations. It did not explain on what basis it had reached the conclusion that information on aviation safety regulatory activities not information on the environment.
13. The IAA identified only two records as falling within the scope of the appellant’s request. These two records consist of a three page email thread between staff of the IAA and the DAA, and a three page document entitled “New Tower & Parallel Runway Interim Concept of Operations at Dublin Airport from August 2022” (the Concept of Operations document) that appears to have been prepared or at very least co-approved by both the IAA and the DAA.
14. The majority of the contents of both records was refused by the IAA. The information refused in the emails record includes the names and work email addresses of IAA and daa staff members, discussions regarding ICAO requirements in relation to the operation of the north runway and suggestions as to how those requirements could be met. The information refused in the Concept of Operations document concerns issues about the operation of the north runway and the impact of the north runway coming into service on other infrastructure at Dublin Airport, such as taxiways and other runways. The document includes information of a somewhat technical nature regarding various operating procedures and scenarios, including information regarding the conditions of the north runway’s grant of planning permission.
15. Paragraph (c) of the definition of “environmental information” refers to 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 paragraphs (a) and (b) as well as measures and activities designed to protect those elements”. 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. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond, paragraph 63). Information may be “on” one measure or activity, more than one measure or activity or both a measure or activity which forms part of a broader measure (Henney, paragraph 42). In identifying the relevant measure or activity that the information is “on” one may consider the wider context and is not strictly limited to the precise measure with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB, paragraph 43).
16. Although the scope of what constitutes a “measure” or “activity” for the purposes of category (c) of the definition is limited, it is nonetheless wide. The CJEU in Mecklenberg stated at paragraph 20 of its judgment that “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”. It noted that “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 public authorities, the term ‘measures’ serving merely to make it clear that the acts governed by the directive included all forms of administrative activity”. Barrett J remarked in RTÉ that “the European Court of Justice [in Mecklenberg] could not have taken a more expansive view of what comprises an administrative measure for the purposes of the 1990 directive” (paragraph 19).
17. I have already described the information that was refused by the IAA on the basis that it does not consider it to be environmental information. As set out above, the IAA’s position appears to turn on the contention that information on aviation safety matters is not environmental information. However, the IAA has provided no basis or evidence to support this position. Generally speaking, it seems to me that the pursuit of aviation safety by public sector/semi-state and public regulatory bodies operating within the aviation sector would be a measure or activity, or a group of measures and activities, that affects or is likely to affect the elements and factors of the environment a set out in paragraphs (a) and (b) of the definition. Put simply, aviation accidents have an obvious and tangible effect on the elements of the environments, like the air, atmosphere, water, soil and land, and the factors of the environment, like noise, waste, emissions and discharges.
18. However, having carefully reviewed and considered the information at issue, it is clear that it does not, in fact, solely or predominately concern matters of aviation safety. Rather, the information at issue can more accurately be described as information on the IAA and the DAA’s preparation and planning regarding the entry into service of the north runway. Naturally, this information can be described as concerning aviation safety, but aviation safety is only element of the information at issue.
19. Having examined the information at issue, it is clear that both the email chain and the Concept of Operations document relate directly to the discussions, plans and preparations undertaken by the IAA and the DAA for the entry into service of the north runway. It is clear that aviation and aviation infrastructure has an impact on the environment. Aircraft emit both noise and a range of pollutants into the environment, and the very construction of aviation infrastructure, like runways, taxiways and airports, can temporarily or permanently alter and affect the environment. Furthermore, the day to day operation of an airport will have a clear and measurable impact on the environment. Plainly, the entry into service of the north runway and the steps taken by the IAA and the DAA in preparing for that event either affected or was extremely likely to affect the state of elements of the environment. The introduction of a new runway will, at very least, necessitate new flight paths into and out of the airport’s airspace, even if the total number of flights or aircraft movements into and out of the airport does not change. This will clearly lead to a change in the noise profile caused by aviation activity at the airport, and the emissions from aircraft using a new runway will impact on the air and atmosphere. Furthermore, the manner in which relevant public sector or semi-state bodies plan and prepare for the introduction of new aviation infrastructure like the north runway will have a consequent effect on the manner of its impact on the environment.
20. Accordingly, I find that the entry into service of the north runway is an activity, which affected or was likely to affect the environment, within the meaning of article 3(1)(c) of the AIE Regulations.
21. The next question to consider is whether the information requested by the appellant is information “on” that measure. 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 the AIE Directive (paragraph 43; see also ESB, paragraph 42). Information that does not advance the purposes of the Aarhus Convention and the AIE Directive may not be “on” the relevant measure or activity (Redmond, paragraph 99). As the Court noted in Henney, the recitals of both the Aarhus Convention and the AIE Directive refer to the requirement that citizens have access to information to provide for a greater awareness of environmental matters, to enable more effective participation by the public in environmental decision-making and to facilitate the free exchange of views with the aim that all of this should lead, ultimately, to a better environment. Those recitals give an indication of how the very broad language of the text of the provisions of the Convention and the Directive may have to be assessed and provide a framework for determining the question of whether information is on a particular measure. Finally, as the High Court noted in ESB, information that is integral to a 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 (ESB, paragraphs 38, 40, 41 and 43).
22. As noted above, the IAA has identified two records relevant to this request, which were provided to this Office and which I have examined in the course of carrying out this review. It is obvious to me that the information at issue in this case is self-evidently information on the measure or activity previously identified. That is to say, the email chain record and the Concept of Operations document are unambiguously records/information on the entry into service of the north runway as they concern the DAA and IAA’s plans and preparations for this occurring. I consider that the release of this information would enable the public to have a better understanding of the discussions and preparations of the IAA and the DAA in advance of the introduction of the north runway. I also consider that the question of remoteness between the information and the measure does not arise in this case, given that the information at issue is so plainly on the measure identified. I am therefore satisfied that it is information “on” the entry into service of the north runway within the meaning of paragraph 3(1)(c) of the AIE Regulations.
23. I am therefore satisfied that the information sought is environmental information within the meaning of the AIE Regulations.
24. In light of the broad wording of the appellant’s request and the specific reference he made to SIDs or Standard Instrument Departures, it is unclear to me whether the IAA has in fact identified all information relevant to the appellant’s request. It seems unlikely that the IAA would hold only two records relevant to such a broad request on a subject matter so clearly within its general remit. For the avoidance of doubt, I would specify that this decision relates to the records identified by the IAA at this stage as relevant to this request, but my comments above should be taken into account if the IAA is considering whether any additional information comes within the scope of the definition of environmental information.
25. However, as set out above, this review is confined to determining whether the information at issue is “environmental information”, such that it falls within the remit of the AIE Regulations. Accordingly, the most appropriate course of action in this case is that I annul the IAA’s decision and remit the matter so that a fresh internal review process may be carried out and so that the IAA may consider whether any of the exemptions contained in articles 8 or 9 apply to the information sought. In making a new internal review decision, the IAA should ensure that it has taken all reasonable steps to identify all relevant information captured by the appellant’s request. If the IAA is unsure as to what information the appellant expected to receive on foot of the request, it should engage with the appellant directly to ascertain this.
26. Having carried out a review under article 12(5) of the AIE Regulations, I find that the information sought is environmental information. I therefore annul the IAA’s decision and direct it to carry out a fresh internal review decision on that basis.
27. 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
16 April 2025