Cinneadh
Mr F and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-131862-X5R6G6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-131862-X5R6G6
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in withholding the information requested on the basis that it is not environmental information within the meaning of the definition in article 3(1) of the AIE Regulations
31 May 2024
1. On 20 June 2022, the appellant wrote to the Department with reference to the following paragraph from a draft document entitled “Response to DG Env DRAFT 22Nov Summary of virtual meeting between Irish Forestry Service and DG ENV. 28 April 2021.”
“In early 2021, FS-DAFM initiated discussions with HH Project EIP and project partner Irish Raptor Study Group, Coillte and NPWS, to advance cooperation in relation to HH and forestry. The initiative originated from the unfortunate publication of sensitive map information by Coillte* and the subsequent withholding by the HH Project and IRSG of annual monitoring results from the HLNA layer provided by NPWS to FS-DAFM to support the latter’s Disturbance Operation Procedure. The meetings afforded the opportunity for a forthright exchange of views, facilitates a deeper understanding of each party’s perspectives, and led to an enhanced level of practical cooperation between the HH Project and Coillte, and to the signing of a data sharing agreement between the HH Project, IRSG and FS-DAFM.”
2. The appellant went on to request the following under the AIE Regulations; “All information (including the origins as intimated*) on the initiative to advance cooperation between the Forest Service of DAFM and the Hen Harrier Project EIP and project partners Irish Raptor Study Group, Coillte and NPWS, in relation to Hen Harrier and forestry. To include correspondence, Agendas and Minutes of meetings, copy of data sharing agreement, etc.
3. The Department responded on 13 July 2022, informing the appellant that due to the complexity of his request it would not be possible to comply with the standard one-month timeframe, and extending the timeframe for dealing with the request by one month. The Department expected to reply to the request by 18 August 2022.
4. As no further correspondence was received, the appellant sought an internal review on 22 August 2022.
5. The Department replied on 26 October 2022, apologising for the delay and explaining to the appellant that his request was inadvertently not answered on time on this occasion, while refusing the request on the basis that the information requested is not environmental information as defined by Article 3(1) of the AIE Regulations.
6. The appellant appealed to my Office on 27 October 2022.
7. 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 the Department of Agriculture, Food and the Marine. 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).
8. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
9. I note that the Department chose to invoke the one-month time extension to answer the original request as provided for under Article 7(2)(b) of the AIE Regulations. The Department should note that this extension is only available where a public authority is unable, because of the volume or complexity of the environmental information requested, to make a decision within one month from receipt of the original request. I do not think it is reasonable for the Department to invoke the time extension and subsequently decide that it is refusing the request on the basis that the information requested is not environmental information as defined by Article 3(1) of the AIE Regulations.
10. I also note that having informed the appellant of the time extension the Department subsequently failed to respond to the request within the extended timeframe which is unacceptable. While I acknowledge that the increase in AIE requests has been challenging for the Department I would remind it of the relevant timelines provided for to answer requests under the AIE Regulations.
11. I acknowledge that the Department issued an apology to the appellant for the late reply and note that the Department have subsequently allocated additional resources to process AIE requests which is most welcome.
12. Following acceptance of this appeal this Office requested copies of all records from the Department which may fall within the scope of the request in order to make a determination on if the records were environmental information within the meaning of the definition in article 3(1) of the AIE Regulations. The Department advised that it had searched in the relevant sections for records, however it could not locate any records which may come within the scope of the request.
13. The Department did inform this Office that it had determined that the meetings in question between the bodies were all virtual meetings and that the officer who dealt with the meetings on behalf of the Department may have relevant records stored on his laptop, however the officer was on long term sick leave and not available to be contacted.
14. In the absence of records being provided by the Department, I must consider if it is possible to make a determination on whether or not the information sought is environmental information as defined by Article 3(1) of the AIE Regulations.
15. In light of the guidance of the High Court in RTÉ, it is my view that I should decide on a case by case basis whether it is essential for me to review the entire content of the requested information before determining whether it is environmental information. In many cases, the content of the requested information will be highly relevant to the determination. This is one of the reasons why in the majority of appeals I require the public authority to make the requested information available to my Office for the purposes of my review. In other cases, the information requested may 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 am able to carry out my review without reviewing the requested information.
16. In its decision the Department informed the appellant that “the information that you have requested is not environmental information as defined by Article 3(1) of the AIE Regulations. Therefore, I do not propose to further process this request and this request is refused”. The Department goes on to inform the appellant that in particular “The information which you have sought is on meetings held to advance practical co-operation and communication between the above referenced bodies and is not environmental information”.
17. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with article 2(1) of the Directive, 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) ".
18. 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 above 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.
19. Paragraph (c) of the definition is the most relevant to this review. 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".
Identification of a measure or activity
20. 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 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).
21. In this case I consider that the relevant measure or activity on which the information is sought is the initiative to enhance co-operation between the Forest Service of the Department, the Hen Harrier Project European Innovation Partnership, the Irish Raptor Study Group, Coillte and the National Parks and Wildlife Service in relation to hen harriers and forestry. I consider that the organisation of meetings with the aim of enhancing co-operation between the relevant bodies in relation to hen harriers and forestry is the type of activity encompassed by paragraph (c).
Whether the measure or activity is likely to affect or designed to protect the environment
22. 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 at paragraph 63). It is also important to note that the actual outcome of a measure or activity is irrelevant.
23. The bodies that were involved in the meetings relevant to this request carry out functions and activities in relation to hen harriers and forestry. The protection of the hen harrier in the context of forestry activities is relevant to the protection of biological diversity and its components, as set out in paragraph (a) of the definition of environmental information. I am satisfied that the measure outlined above is likely to affect the environment as an enhanced level of practical co-operation will undoubtedly improve the manner in which each body carries out their functions in relation to hen harriers and forestry.
Whether the information sought is “on” the relevant measure
24. The next question to consider is whether the information requested by the appellant is information “on” that measure. RTÉ (paragraph 52) endorses the approach set out in Henney. The Court in Henney found that “information is ‘on’ a measure if it is about, relates to or concerns the measure in question” but “simply because a project has some environmental impact, it does not follow that all information concerned with that project must necessarily be environmental information” (see paragraphs 37 and 45).
25. 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).
26. The guidance provided by the Courts therefore suggests that there is a sliding scale with information integral to a measure at the one end (in the sense that it is quite definitively information “on” a measure) and information considered too remote from the measure on the other end (in the sense that it is not). The example referred to in Henney noted that a report on PR and advertising strategy might be considered information “on” the Smart Meter Programme (the measure at issue in that case) “because having access to information about how a development is to be promoted will enable more informed participation by the public in the programme”. However, information relating to a public authority’s procurement of canteen services in the department responsible for delivering a road project would likely be considered too remote (paragraph 46). Henney also makes it clear that the definition should be applied purposively having regard to matters such as “the purpose for which the information was produced, how important it was to that purpose, how it is to be used and whether access to it would make the public better informed about, or enable it to participate in, decision-making in a better way” (see paragraph 43).
27. The appellant has sought all information on the relevant meetings, to include correspondence, Agendas and Minutes of meetings, copy of data sharing agreement. I find that this information is “on” the relevant measure within the meaning of article 3(1)(c) as it is information on the matters of substance discussed at the meetings and information on the outcome and results achieved by these meetings.
28. I am therefore satisfied that the information sought is “environmental information” within the meaning of article 3(1) of the AIE Regulations.
Conclusion
29. Given the circumstances of this appeal I will annul the internal review decision of the Department. The Department should now provide the appellant with a new internal review decision, taking the above into account.
30. Given the time which has passed since this appeal was accepted the Department may now be in a position to conduct more thorough searches for the records in question and to make a determination on each record located. If the Department is still unable to locate any relevant records it should set out details of the search process undertaken and any reason it cannot conduct thorough searches to the appellant.
31. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the internal review decision of the Department. The result of this decision is that a new internal review process should be carried out by the Department under article 11 of the AIE Regulations.
32. 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