Cinneadh
Mr X and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-120920-F6M9C0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-120920-F6M9C0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
21 February 2025
1. On 6 December 2021, the appellant made a four-point request to the Department for access to:
“[…] for the period 1 January 2021-present [date of request: 6 December 2021]:
1. Copies of records in relation to inspections at [Company A’s peat facility], including inspection reports, inspection data, correspondence with the company and/or any briefing documents for senior management (Ass Sec level and above)
2. Copies of phytosanitary certificates for peat products exported by any of the following companies: [Company A, Company B, and several other named companies]
3. Copies of phytosanitary certificates for peat products imported by any of the following companies: [Company B and another named company]
4. Correspondence with the requisite authorities/department in the following countries in relation to the general importation of peat products from [Company A] and/or specific cases of importation of peat products from [Company A] into those countries: South Africa, Israel, Canada and/or Australia
In all the above, please exclude all correspondence that directly concerns the setting up or organising of physical or virtual meetings.”
2. In its original decision of 3 February 2022, the Department stated it was part-granting the request. The Department stated that from an examination of the information it held, it did not hold any: briefing documents relevant to point 1 of the request; phytosanitary certificates relevant to point 3 of the request; correspondence relevant to point 4 of the request.
3. The Department part granted access to certain information relevant to point 2 of the request, and refused access to information coming within point 1 of the request under article 9(1)(c), in particular: “copies of records in relation to inspections at [Company A’s peat facility], including inspection reports, inspection data, correspondence with the company”.
4. The appellant sought an internal review on 4 February 2022 in relation to point 2 of his original request only, explicitly narrowing the scope of his internal review request to the following:
• Number of phytosanitary certification issued in 2021 per country for Company A
• Number of phytosanitary certification issued in 2021 per country for Company B
5. The Department’s internal review decision of 25 February 2022 does not appear to have taken into account the narrowed scope of the appellant’s request following his internal review request. The Department affirmed its original decision and again cited article 9(1)(c) of the AIE Regulations. The Department stated that “the factors in favour of withholding this information regarding points 1 and 2” of the request “are related to commercial or industrial sensitivity of the companies concerned.”
6. The appellant sought a review by this Office of that decision on 21 March 2022.
7. During the course of this review, Companies A and B were contacted by this Office and invited to make submissions regarding their positions on the release of the information at issue. Only Company A responded, as set out in detail later in this decision.
8. 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, the Department, and Company A. I have also examined the information at issue, as provided to this Office by the Department in the form of a spreadsheet. 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);
• 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).
9. What follows does not comment or make findings on each and every argument advanced by each party to this review, but all relevant points have been considered.
10. In his appeal to this Office, the appellant stated that he was only seeking access to the number of phytosanitary certificates per country for Company A and Company B in 2021.
11. While the Department relied on article 9(1)(c) to refuse this information at internal review stage, and in an initial submission to this Office during the course of this review, in a later submission to this Office the Department amended its position and contended that the information sought was not environmental information in the first place.
12. Accordingly, having regard to the date of the appellant’s original AIE request, the scope of this review is limited to whether the Department was justified in refusing access to the number of phytosanitary certifications per country for Company A and Company B respectively for the period 1 January 2021 to 6 December 2021:
a) on the basis that such information does not comprise “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations,
and, subject to my finding in relation to a) ,
b) on the basis of article 9(1)(c) of the AIE Regulations.
13. In the Department’s most recent submission to this Office, it relied solely on the argument that the information at issue is not environmental information. However, Company A raised commercial sensitivity arguments in its submission to this Office. Accordingly, it is appropriate that I consider the applicability of article 9(1)(c) in this case.
14. In his appeal to this Office, the appellant made reference to concerns he said the horticultural peat industry had raised publicly regarding a perceived lack of domestic supply of peat. The appellant argued that these concerns led to “strong political support” in the Oireachtas, which resulted in proposed but never enacted legislation to change regulations on peat extraction. The appellant also cited a 2022 High Court judgment which he contended granted the EPA an injunction against Company A for peat extraction activities without an EPA licence.
15. The Department also made reference to these matters in its initial submission to this Office. In contrast however, it argued that the publicity surrounding the High Court case had already served to “firmly place the topic of an issues surrounding licencing and planning permission for the extraction of peat well into the public domain and the public discourse”. It emphasised that it had no role in the regulation of peat extraction and that release of the specific information requested would not indicate whether the peat it certified had been legally extracted or not. In making these points in this manner it seems to me that the Department was essentially arguing that granting access to the information at issue would not serve to advance the public interest factors in favour of release, such as the public interest in members of the public knowing about potentially illegal actions that affect the environment.
16. It is important to note that this review is not concerned with the legality or otherwise of peat extraction in general, or in respect of peat extraction by Companies A or B in particular. Such matters are not relevant to this decision, save insofar as they may broadly inform a consideration of the public interest test contained in article 10 of the AIE Regulations, as implied by the Department in its initial submission.
Whether the information is environmental information: article 3
17. 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 as provided for in article 3(1) of the AIE Regulations. I consider that the information sought in the appellant’s request falls within this definition, in particular paragraph (c). Article 3(1)(c) of the AIE Regulations provides that “environmental information” means any 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) (i.e. the environment) as well as measures or activities designed to protect those elements.
18. 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. It is the Department’s view that none of the paragraphs of the definition apply in this case. In its submission to this Office of 22 March 2023, the Department explained the context and background of phytosanitary certification:
“The Department […] as the National Plant Protection Organisation (NPPO) of Ireland has the responsibility for the issuing of phytosanitary certificates for the export of regulated plants, plant products and other objects, which includes growing media and/or peat. A phytosanitary certificate is a document addressed from one NPPO to another which provides attestations that the consignment is free from pests and/or diseases. [The Department] carries out this function in line with its obligations as a contracting party under the International Plant Protection Convention […] and phytosanitary certificates are issued to professional operators on request in line with the format required under EU plant health law […]. This function facilitates the safe trade of plants, plant products and other objects (from a phytosanitary perspective) carried out by commercial entities or individuals when sending consignments (commercial/personal) to customers/recipients in third countries (non-EU).”
20. The Department went on to argue that the information concerning phytosanitary certification is not environmental information within the meaning of the AIE Regulations. It contended that phytosanitary certification “[…] is not information on the state of any element of the environment [paragraph (a) refers] or of any factor [paragraph (b) refers] or measure affecting or likely to affect elements of the environment [paragraph (c) refers]. Phytosanitary certification is not a report on the implementation of environmental legislation [paragraph (d) refers] nor is it information on the state of human health and safety, safety of the food chain, conditions of human life, cultural sites and built structures insofar as same might be affected by the state of the elements of the environment [paragraph (f) refers].”
21. As stated above, I consider that paragraph (c) of the definition is most relevant. In my view, the relevant measure/activity in this case is clearly the Department’s issuing of phytosanitary certificates for the export of regulated plants, plant products and other objects. It is obvious that plants and plant products are elements of the environment as described in paragraph (a) of the definition of environmental information, as they may comprise soil, water, land and are components of biological diversity. I consider that peat products in particular are captured by paragraph (a), given the express reference to wetlands.
22. As the Department stated in its submission to this Office, phytosanitary certificates provide attestations that consignments are free from pests and/or diseases. Phytosanitary certification has a clear effect on the environment given it comprises a certification process to rule out whether plants, plant products or other objects contain pests and/or diseases. Assessing whether or not a peat product is free from pests and/or diseases clearly effects the environment as the results of that assessment determines whether that element of the environment may or not be exported and whether or not that peat product contains pests or diseases which could affect other elements of the environment, either in Ireland or in the intended destination country.
23. The next question to consider is whether the information is “on” that measure/activity. Henney set out that information is “on” a measure if it is “about, relates to or concerns the measure”. 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. 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.
24. In this case, the information concerns the number of phytosanitary certifications issued for peat products per country for Company A and Company B respectively for the period 1 January 2021 to 6 December 2021. In my view the number of certifications issues is concerns, relates to and is about the measure. I consider the release of this information would inform the public on the Department’s role in phytosanitary certification of peat and other plant products and would therefore advance the purposes of the Aarhus Convention.
25. Having carefully considered the matter, I do not consider that this information is too remote from the relevant measure/ activity to qualify as environmental information. Accordingly, I find that the information is “on” the phytosanitary certification of peat products within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations and therefore is sufficiently related to the relevant measure to qualify as environmental information within the meaning of article 3(1)(c). I will therefore go on to consider the exemptions arising in this review.
Commercial or industrial confidentiality: article 9(1)(c)
26. The information at issue consists of the number of phytosanitary certifications issued for peat products by the Department per country for Company A and Company B respectively for the period 1 January 2021 to 6 December 2021. As outlined in detail above, during the course of this review, the Department amended its position and argued that the information at issue is not environmental information in the first place. In doing so, it is not clear whether the Department remains of the view that the information sought is commercially sensitive within the meaning of article 9(1)(c), as that exemption is not applicable if the information is not subject to the AIE Regulations. However, one of the companies concerned, Company A, made arguments regarding commercial sensitivity in its submission to this Office, as outlined in more detail below. Accordingly, I consider it necessary to consider the applicability of article 9(1)(c), and the arguments made by the Department and Company A in respect of that exception, to the information at issue.
The Department’s position
27. In its initial submission to this Office of 6 May 2022, the Department noted that the appellant had essentially argued that the release of the number of phytosanitary certificates issued per country and identified for each of the individual companies subject to the initial request would not be commercially sensitive if the ‘quantities’ were not also provided.
28. In response, the Department argued that identifying the destination country/‘market’ of each company and frequency of export to those countries/markets would be considered commercially sensitive information. As outlined above in the preliminary matters section of this decision the Department then went on to comment on the appellant’s arguments regarding the legality of the extraction of peat and the perceived lack of publicly available information regarding the trade flow of peat and peat products to facilitate “informed debates on the matter in the Oireachtas.” As already set out, the question of the legality of peat extraction is not relevant to this review, save insofar as it may inform a consideration of the public interest test contained in article 10 of the AIE Regulations.
29. The Department was invited to make a further, focused submission to this Office when the case was assigned to an investigator. In that request for submissions, the Department was asked to address specific queries concerning its reliance on article 9(1)(c) in particular. Given the Department amended its position on foot of that invitation, and only argued that the information at issue is not environmental information, the Department did not address the specific queries raised by this Office concerning article 9(1)(c).
Company A’s position
30. This Office’s investigator wrote to Company A and Company B to inform them of this review, its’ scope, the Department’s previous and present positions on the matter, and to invite them to make submissions. The companies were provided with the investigator’s preliminary view that the information at issue is environmental information within the meaning of article 3(1) of the AIE Regulations, and that the Department had not justified its refusal of the information on the basis of article 9(1)(c).
31. In relation to article 9(1)(c) in particular, the investigator stated that, in his view, the Department had failed to identify where the commercial or industrial confidentiality it had claimed would be adversely affected by disclosure is provided for in national or community law, noting that the Department had not cited any national or European Union legislation in making that argument. The investigator went on to explain that, in his view, the Department had also failed to explain what the adverse effect to such confidentiality would be, and how that adverse effect would come about.
32. Only one of the companies, Company A, responded to the invitation to make submissions. In its submission, Company A stated that it repeated the “objection” raised by the Department and the arguments made “in support of that submission.” Company A went on to argue as follows:
“Secondly, we wish to submit that the information being sought is commercially sensitive and clearly so as any such certificates outline the quantity of any export on foot of each certificate and the nature of the product and we believe that information is sought to establish the export turnover of this company to any Country requiring such a certificate and as such request is not in fact a genuine request to establish information as intended and provided for under the regulations. Clearly, this company cannot export to a Country requiring such certification and there is nothing in the certification process which is of Environmental value.
We therefore believe that such request is made, not to establish any environmental data from the certificates issued but commercially sensitive detail which would not either be in the public domain or disclosed to any third party. We therefore object to the provision of this information and disagree with your findings on the submissions made by the Department and ask that the Commissioner also consider the additional submission made here.”
Analysis
33. Article 9(1)(c) of the AIE Regulations permits a public authority to refuse to make environmental information available where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided in national or Community law to protect a legitimate economic interest. A number of elements are required in order to engage the exemption provided for in this article:
a. The information must be commercial or industrial in nature.
b. The confidentiality of the information must be provided for by law.
c. The confidentiality is protecting a legitimate economic interest.
d. The confidentiality would be adversely affected by disclosure.
34. Even if it is adequately demonstrated that all the required elements are present to engage the exemption at article 9(1)(c), it is also subject to article 10 of the AIE Regulations, which requires a public authority to consider each request on an individual basis and to weigh the public interest served by disclosure against the public interest served by refusal, interpreting the grounds for refusal on a restrictive basis having regard to the public interest served by disclosure.
35. The Department appeared to argue that releasing the number of phytosanitary certificates issued per country in respect of each of the two companies concerned would identify the destination country/‘market’ of each company and frequency of export to those countries/markets and would therefore be commercially sensitive information.
36. It is necessary to make a number of observations in relation to the submission and arguments of Company A. Although the scope of this review was clearly stated in the invitation to make submissions, Company A appears to be of the mistaken understanding that the phytosanitary certificates themselves are at issue in this review, rather than simply the numbers of phytosanitary certificates issued per country and per company within the time frame specified. This misunderstanding is evident from Company A’s argument that the “certificates outline the quantity of any export on foot of each certificate and the nature of the product and we believe that information is sought to establish the export turnover of this company to any Country requiring such a certificate.”
37. Furthermore, as per article 6(2) of the AIE Regulations, the motive or interest of a person or persons making a request for access to environmental information is irrelevant to whether or not the information at issue is eligible for release. Accordingly, Company A’s assertion that the appellant’s request is not “genuine” is entirely irrelevant to this review.
38. There are two main issues with the manner in which the Department, and by extension Company A, sought to rely on article 9(1)(c) in this case.
39. First, a necessary element of applying article 9(1)(c) is identifying the relevant national or Community law which provides a basis for the confidentiality of the information sought. Neither the Department in its decisions or its initial submission, nor either of the companies referenced in the request have made any reference to any national or Community law which provides a basis for the confidentiality of the information sought. While the Department’s initial submission contended that information it holds for the purpose of providing a phytosanitary certificate to a commercial entity is considered commercially sensitive, it did not set out where in law the confidentiality of such purported commercially sensitive information is protected.
40. Secondly, even if the Department had cited a legislative basis for the confidentiality claimed, it failed to set out any specific potential adverse effect that release would have on that commercial or industrial confidentiality in its initial decision or internal review decision. The Department again failed to do so when offered the opportunity to make submissions by this Office, apart from simply stating that “[…] identifying the destination country/‘market’ of each company and frequency of export to those countries/markets would be considered commercially sensitive information.” The Department did not explain how or why release would adversely impact the commercial or industrial confidentiality claimed, merely implying that it would. The Department also did not provide any evidence that the release of information would affect the confidentiality claimed.
41. Company A’s submission centred around its mistaken belief that this review concerns the phytosanitary certificates themselves and not the number of phytosanitary certificates issued per country per company. It argued that the certificates “[…] outline the quantity of any export on foot of each certificate and the nature of the product […]” and asserted that the information was being sought to establish the export turnover of Company A to those countries which require such certificates. Accordingly, Company A also failed to identify a legislative basis for the commercial or industrial commerciality claimed, and failed to identify any specific potential adverse effect release would have on that commercial or industrial confidentiality, let alone explain how such an adverse effect would or could come to pass.
42. Having carefully reviewed the information at issue, I can identify no clear correlation or proportionate relationship between the issuing of a phytosanitary certificate for a consignment for export by the Department and either the quantity of packages within that consignment, or the total weight in kilograms of that consignment. The number of packages within a consignment and the total weight of a consignment vary considerably between consignments. Accordingly, I do not consider that the number of phytosanitary certificates issued per company per country is any reliable indication of the actual export flows of those companies to the countries concerned.
43. It seems to me that the only definitive conclusion one can draw from the number of phytosanitary certificates issued per company per country is that the company concerned exported an unknown quantity of peat products to the specified country during a specific period in 2021. This being the case, I do not see how the release of this information could adversely affect the legitimate economic interests of the companies involved. Due to this, any confidentiality of the information is not protecting such economic interests as required by article 9(1)(c).
44. Having had regard to the arguments of the parties, along with the contents and nature of the information at issue, I find that the Department, Company A, and Company B failed to demonstrate that the elements necessary to engage the exemption provided for at article 9(1)(c) are present in this case. Accordingly, the question of considering the public interest test at article 10 of the AIE Regulations does not arise. I find therefore that article 9(1)(c) does not apply to the information at issue.
Conclusion and findings
45. I find therefore that the number of phytosanitary certifications per country for Company A and Company B respectively for the specified period is information on the environment within the meaning of article 3(1), and that article 9(1)(c) does not apply to that information.
46. Having carried out a review under article 12(5) of the AIE Regulations, I annul the decision of the Department and direct release of the number of phytosanitary certifications per country for Company A and Company B respectively for the period 1 January 2021 to 6 December 2021.
47. 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