Cinneadh
Mr D and Department of Defence
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146547-C9W3R2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-146547-C9W3R2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the information requested is environmental information within the meaning of article 3(1) of the AIE Regulations
26 November 2025
1. On 24 November 2023, the appellant submitted a request to the Department seeking access to“a list, of all correspondence/documentation/pieces of paper generated, and all information known by you, that in any and all ways relate to the volume of AIE requests on hand in relation to the Curagh Plains as of October 9th 2023 including but not limited to the total number of AIE requests on hand in relation to the Curragh Plains as of 9th October 2023”.
2. On 19 December 2023, the Department issued its decision refusing the request under article 3(1) of the AIE regulations, stating“your request does not qualify as a request for information on the environment and must, therefore, be refused”.
3. On 28 December 2023, the appellant requested an internal review of the Department’s decision.
4. On 26 January 2024, the Department issued its internal review decision. In doing so it affirmed its original decision, stating it was“satisfied on reviewing the definition of “environmental information” in the AIE Regulations that your request outlined above is out of the scope of the AIE Regulations.”
5. On 19 February 2024, the appellant appealed to this Office.
6. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department of Defence. 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 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; and
• 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).
7. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, my role 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, I will require the public authority to make available environmental information to the appellant.
9. The Commissioner for Environmental Information’s powers apply only in respect of environmental information held by or for a public authority. The Department’s position is that the information sought by the appellant is not “environmental information” such that it falls outside the scope of the AIE Regulations.
10. Accordingly, I am satisfied that the scope of this review is to determine whether the Department was justified in refusing access to the information requested by the appellant on the basis that it does not constitute “environmental information” within the definition provided at article 3(1) of the AIE Regulations.
11. 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 AIE 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)".
12. According to national and EU case, while the concept of“environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB No. 1 at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU. However, the right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition.
13. 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, emphasis added), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
14. The appellant contends“the information we request is environmental information, pursuant to Article 2 .1 (d) being, de facto reports on the implementation of environmental legislation”. The Department submits“that the information requested did not constitute measures (including administrative measures) and as such, refused the request on the basis that it did not constitute information on the environment. This request is deemed to relate to the Department’s records management processes”.
15. As I have done in previous decisions, I caution against an excessively legalistic approach to the identification of the“correct” measure. In my view, the Irish and European courts have not indicated that there is one clear and precise answer to the identification of a measure. Rather, the courts have indicated that the focus should be on whether the measure affects or is likely to affect the environment. With this in mind and having carefully considered the wording of the appellant’s request, I consider the relevant measure or activity in this request is the implementation of the AIE Regulations by the Department of Defence.
16. Having established that the implementation of the AIE Regulations by the Department constitutes a measure, I will now consider whether the implementation of the AIE Regulations by the Department, is likely to affect or is designed to protect the environment in accordance with the elements contained in article 3 (1) (a), (b) and (c) of the AIE Regulations.
17. A measure or activity is“likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that“something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the ‘general and unlimited right of access ’ that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive)” (paragraph 63).
18. I consider that the implementation of the AIE Regulations by the Department has a real possibility of affecting the environment. A core objective of the AIE regime is to increase public access to environmental information and to encourage more effective participation by the public in environmental decision making and is ultimately designed to protect the environment. I consider the implementation of the AIE regime, which includes processing AIE requests, affects, or is likely to affect, the environment, in the sense that it is capable of affecting the environment. That is the test set out in article 3(1)(c) of the AIE Regulation and in Minch. Furthermore, I note the findings in Minch which included that "likely to affect" the environment in paragraph (c) should really be understood in the sense of being "capable of affecting” the environment. In this context, I consider that information concerning the manner in which a public body such as the Department implements this legislation, could be considered capable of impacting on public participatory activities; participation which advances the purposes of the Aarhus Convention and the Directive.
19. Having regard to the wording of article 3 (1) (c) of the Regulations, it now falls to be considered whether the information sought is information “on” a relevant measure. As“any information … on” a measure or activity affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information“on” such a measure (Redmond at paragraphs 57 and 59). As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). The question as to whether information is“on” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention.
20. Henney further 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.
21. In this case, the information concerns the volume of AIE requests processed by the Department relating to the Curragh as of 9 October 2023. I am of the view that this relates to, or concerns the measure as it pertains to the volume of requests processed by the Department at a given point in time, in relation to a particular geographical area of Ireland. I am of the view that the processing of AIE requests is a cornerstone of the AIE regime and the volume of AIE requests processed by the Department is a key indicator of activity within the Department related to the AIE Regulations. It is an indicator of whether the AIE system is functioning effectively –hence advancing the purpose of the AIE Directive and Aarus Convention of guaranteeing public access to environmental information held by public authorities, and ensuring transparency of environmental decision making. I am satisfied that the information requested is information “on” a “measure or activity” within the meaning of article 3(1)(c) of the Regulations and should be considered “environmental information” within the scope of the AIE Regulations. It is clearly about the measure, it relates to it and concerns it.
22. I note the Department’s point in its submission to this Office that it considers the appellant’s request to be more appropriate under the FOI regime, and that it remains open to engagement with the Commissioner and the appellant to assist in this regard. FOI and AIE are distinct legal access regimes, and as this request was clearly made under AIE it is obliged to be processed as such. I have found the information requested by the appellant to be environmental information in line with article 3(1) of the AIE Directive, therefore I am remitting the matter to the Department for consideration of release of the information requested in accordance with the provisions of the AIE Regulations.
23. 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 Departments internal review decision in this case, and I direct it to provide the appellant with a new internal review decision in respect of the request.
24. 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.
Gemma Farrell
On behalf of the Commissioner for Environmental Information