Cinneadh
Dr. Fred Logue and Electricity Supply Board
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147504-Q5B3C8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147504-Q5B3C8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the information requested by the appellant is “environmental information” within the meaning of article 3(1) of the AIE Regulations
18 December 2024
1. On 28 December 2023, the appellant made the following request under the AIE Regulations to ESB:
(1) For each of the last three years, i.e. 2021, 2022 and 2023 please provide a list of AIE appeals to the Commissioner for Environmental Information against decisions of your organisation which were initiated in each of those years with the date of the appeal and the Commissioner’s case reference.
(2) For each appeal please indicate whether external legal practitioners were engaged.
(3) In each case where the answer to question (2) was yes please provide the name of the solicitors and/or counsel that were engaged.
(4) In each case where eternal legal counsel was engaged please provide the costs broken down as follows:
(i) Solicitors professional fee;
(ii) VAT;
(iii) counsel’s fees per counsel if more than one; and
(iv) itemised outlay
(5) For each of the three years listed in (1) please provide the total overall spend by your organisation on external legal advice relating to AIE requests, appeals and litigation.
We would like to get this information in Excel format.
2. As will be set out below in more detail, the appellant wanted this information to fully participate in a communication to the Aarhus Convention Compliance Committee (the ACCC).
3. ESB responded to each part of the appellant’s request on 26 January 2024, as outlined below.
4. In relation to part (1), ESB stated that it had “identified one record which may potentially satisfy [the appellant’s] request... [and a] decision has been made to release this record in full”.
5. In relation to part (2), ESB informed the appellant, that it had “identified one record which may potentially satisfy this part of [the appellant’s] request”. It stated: “This record is a note of legal advisers appointed to advise ESB on an AIE appeal related to information on maps, and policies, procedures and codes of practice.” ESB went on to advise the appellant as follows:
“Although, you have not set out under what part of the definition of environmental information you believe the information relates to, it’s my opinion that this record does not satisfy the definition of environmental information in parts (a), (b), (d), (e) or (f) of Article 3 of the AIE Regulations.
When considering part (c) of the definition, I note that the maps, and policies and procedures may affect or are likely to affect factors of the environment set out in parts (a) and (b) of the definition of environmental information. As a result, in and of itself, information on these activities could possibly be considered a measure and environmental information under part (c) of the definition. However, records relating to the appointment of legal advisers appointed to advise on an AIE appeal about requests for information on maps of Networks’ infrastructure and policies, procedure and codes of practice is not intrinsic to the measure itself and in my opinion is too remote from the measure to satisfy the definition of environmental information.
This information you have requested has no impact whatsoever on the manner in which the maps are drawn or how the codes of practice, procedures and policies are drafted and carried out. This record is solely concerned with the names of appointed legal advisers for particular appeals to the OCEI under the AIE regulations. This information in no way outlines any actual advice or information in relation to the content of AIE requests. This information is not itself a measure or activity affecting or likely to affect the elements or factors referred to in (a) and (b) of the definition of environmental information in Article 3 of the Regulations and as such is not environmental information under part (c) of the definition.
I believe the information is too remote to fall within the definition of environmental information. I am therefore refusing this information as not environmental information within the definition of the AIE Regulations.”
6. In relation to parts (3), (4) and (5), ESB, similarly stated, for each part, that it had “identified one record which may potentially satisfy this part of [the appellant’s] request”. It also stated that a decision has been made to refuse the release of these records, for the same reasons as outlined above.
7. On 26 January 2024, the appellant requested an internal review of the above decision. In this correspondence, the appellant outlined his view that the Commissioner (for Environmental Information), “has already determined that legal costs relating to environmental litigation, which would naturally include AIE appeals to [the Commissioner], is environmental information”.
8. On 23 February 2024, ESB provided the outcome of its internal review to the appellant. The internal review, upheld the original decision, as outlined below.
9. ESB noted that the appellant’s reference to the decision in case OCE-100993-X1G6Q1 (Ken Foxe, Right to Know CLG and Coillte Teoranta (Coillte)), in support of his view that this Office has already determined that legal costs relating to environmental litigation, including AIE appeals, is environmental information. ESB stated that the appellant was incorrect in this view. ESB considered that the decision in OCE-100993-X1G6Q1 was in relation to the particular legal proceedings which were the subject of the legal advice/ representation for which the invoices were sought under the AIE Regulations. It submitted: “When considering if the legal proceedings were a measure or activity under Article 3(1)(c) of the AIE Regulations the Commissioner considered the facts of the particular Court case and the background to that particular case. Only when the Commissioner decided that those particular Court proceedings were a measure or activity under Article 3(1)(c) of the AIE Regulations, did he then to go on to consider a) if the measure was capable of effecting the environment, and once he had decided that it was, he then b) decided that the invoices requested were information on that measure, and consequently environmental information in that instance.”
10. ESB considered that it was not correct to purport that the decision reached by the Commissioner in the OCE-100993-X1G6Q1 related to legal invoices for all environmental litigation, and that was further incorrect “to sweep legal invoices for advices in relation to AIE appeals to the Commissioner into that broad statement”.
11. ESB also considered that the appeal in OCE-100993-X1G6Q1 did not relate to legal invoices for advices relating to appeals to the Commissioner, and as such, it understood that this type of legal invoice was not considered by the Commissioner in that case. ESB stated that this was the nature of the legal invoices/ information which are the subject of this internal review and it confirmed none of the located records related to legal fees for advices in relation to litigation.
12. In relation to the names of external solicitors or barristers, breakdown of their individual costs, and overall legal spend on external AIE legal advices, ESB considered that this information does not itself satisfy any part of the definition of environmental information in the AIE Regulations
13. ESB noted that the advices sought concerned an appeal to the Commissioner in relation to a request for information related to information on maps, and policies, procedures and codes of practice. It stated that the information the subject of the original request itself had the potential to be a measure that affects or is likely to affect the elements of the environment as set out in part (c) of the definition of environmental information. It considered however, that details of legal payments in relation to an appeal to the Commissioner to release certain information about the measure under the AIE Regulations is not intrinsic to the measure, and is too far removed from the original measure to be considered information on that measure for the purpose of the definition of environmental information. In reaching this position, ESB noted that it had regard to the decision 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).
14. The appellant brought an appeal to this Office on 16 March 2024.
15. On 8 April 2024, ESB was provided with a copy of the appellant’s statement of appeal and was requested to forward, within six (6) weeks or by 20 May 2024, both the subject matter information/records and a final submission in support of its decision in this case.
16. 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.
17. The powers of the Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. It is clear from ESB’s internal review decision, along with it correspondence with this Office, that it is ESB’s position that the information sought by the appellant at parts (2), (3), (4) and (5) of his request is not “environmental information” such that it falls outside the scope of the AIE Regulations.
18. In accordance with this Office’s Procedures Manual, available at www.ocei.ie our general practice in cases such as this, concerning a threshold jurisdictional issue, is to limit our review to the preliminary matter of whether the information sought is “environmental information” such that it falls within the scope of the AIE Regulations.
19. Accordingly, I am satisfied that it is appropriate to limit the scope of this review to whether ESB 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.
20. In his appeal dated 16 March 2024, which was received by this Office on 19 March 2024, the appellant submitted that the information requested was necessary for his client’s communication to the ACCC in relation to the prohibitive costs of appeals (case ACCC/C/2023/199). The appellant made further submissions to this Office on 9 April 2024 in support of his appeal, which are summarised below.
21. The appellant submitted that Article 9(4) of the Aarhus Convention requires that the procedures for access to justice under Article 9(1) must not be prohibitively expensive. He submitted that, for AIE matters, there are several instances of access to justice under the first paragraph of Article 9(1) starting with the Commissioner for Environmental Information whose decisions are further capable of being appealed to the High Court on a point of law.
22. The appellant submitted that the costs of appeals to the Courts are subject to special provision in Sections 3 and 5 of the Environment (Miscellaneous Provisions) Act 2011 which alters the normal “loser pays” rule in litigation to “one-way cost shifting” for AIE appeals, whereby the requestor is not exposed to adverse costs if they lose but is entitled to recover costs if they win, submitting that the Irish Courts have ruled (e.g. Heather Hill) that these special costs rules give effect to Ireland’s obligations under the Aarhus Convention.
23. The appellant submitted that there are no similar provisions, or indeed any provisions, relating to the costs of appeals to this Office. The appellant further submitted that he is advising his client (Right to Know CLG) on a communication to the ACCC alleging that Ireland has not complied with Article 9(4) since it has not implemented any measures to ensure that the costs of appeals to this Office are not prohibitively expensive. The appellant submitted that this AIE request is part of the research that he is undertaking in order to establish the actual costs of appeals to this Office so that they can be presented to the ACCC so as to inform it about typical costs incurred by parties to appeals to this Office. He also made similar requests to a number of public authorities as part of this research.
24. The appellant referred to the definition of “environmental information” in Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ). He submitted that the required analysis is fact specific and a purposive approach to interpretation should be used having regard to the objectives of the Aarhus Convention and the AIE Directive, particularly in marginal cases. The appellant submitted that “the public authority rejected the request on the basis that the legal costs was not a measure under category (c) of the definition in Regulation 3(1)”. He submitted that “the public authority misinterpreted the AIE Regulations and did not identify the correct measure, which in this case is the AIE Regulations and the Aarhus Convention … The question of whether information is on a measure is one of whether it is about, relates to or concerns that measure.”
25. The appellant submitted that this Office has already held, in cases CEI/12/0008 (Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht) and OCE-93406-G5Y0Y0 (Right to Know CLG and Department of Communications, Climate Action and the Environment), that the AIE Regulations come within the concept of measures designed to protect the environment and therefore are within category (c). He further submitted that per the decision in Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2), this Office ought to follow its earlier decisions unless there is good reason not to.
26. The appellant argued that, in the current case, information on the legal costs incurred in appeals is clearly integral to this measure. He submitted that the issue of costs and financial barriers to the exercise of environmental rights is an important aspect of the Aarhus Convention and occurs in a number of areas as follows:
a. Article 4(8) tightly controls charges for supplying environmental information.
b. Article 5(2)(c) prohibits charges for accessing publicly available lists, registers or files.
c. Article 6(6) requires access to the information needed for public participation to be free of charge.
d. Article 9(1), second paragraph, requires an AIE reconsideration procedure that is free of charge or inexpensive (note: this correlates to internal review).
e. Article 9(4) requires that the procedures under Articles 9(1) to (3) are not prohibitively expensive.
f. Article 9(5) requires consideration of appropriate assistance mechanisms to remove or reduce financial or other barriers to access to justice.
27. The appellant submitted that it is clear that the cost of AIE appeals is information that is quite central to the overall Aarhus Convention and in particular to AIE and access to justice.
28. The appellant submitted that this Office has already held, in cases OCE-100993-X1G6Q1 and OCE-136880-Q2N3W3 (FP Logue Solicitors c/o Dr Fred Logue and An Bord Pleanála), that legal costs are capable of being environmental information. He submitted that there is no material difference between the current case and these earlier cases to distinguish them, such that the current request is not environmental information. The appellant argued that the logic in these cases doesn’t mean that legal costs are environmental information only because the legal action causes delay.
29. On 7 August 2024, the investigator assigned to this case wrote to ESB and provided a summary of the appellant’s submissions to this Office dated 16 April 2024. ESB was provided with an opportunity to include any further information that it considered may be relevant to the Commissioner’s review, including if it wished to make any comments in response to the content of the appellant’s submissions to this Office.
30. ESB provided submissions to this Office on 18 September 2024, which are summarised below. It also provided a copy of the records identified by it as relevant to the appellant’s request.
31. ESB noted that the reasoning and / or motivation for the appellant’s AIE request, as outlined in his submissions to this Office dated 9 April 2024. In this regard, ESB submitted the following:
“While ESB does not agree with all of the legal points identified in those paragraphs, it does not propose to respond to the underlying allegation of whether the State has failed to comply with Article 9(4) of the Aarhus Convention in respect of costs of appeals to the Commissioner in these submissions. That allegation is a matter that falls outside of the Commissioner’s legislative remit and does not fall to be considered in this review.
Article 6(2) of the AIE Regulations provides that an applicant shall not be required to state his or her interest in making an AIE request. As reiterated recently by Humphreys J in Coillte Cuideachta Ghníomhaíochta Ainmnithe v Commissioner for Environmental Information [2023] IEHC 640 at §2, the motive for an AIE request is legally irrelevant.
As such, there is no requirement for a requester to explain why they are making the request and their motivation is irrelevant for the purposes of determining that request.
While the Appellant in this matter has explained why he has made the AIE request (as he is entitled to do and ESB makes no criticism for the Appellant having done so) ESB does not propose to engage with this motivation or comment on same as the motivation for the request is irrelevant.”
32. In relation to the issue of whether the information sought at parts (2) – (5) of the appellant’s request is “environmental information”, ESB made submissions as summarised below.
33. ESB submitted that, as explained by the CJEU in Case C-297/12 Fish Legal v. Information Commissioner (Fish Legal), the right of access guaranteed by the AIE Directive applies only in respect of information which falls within the concept of “environmental information” within the meaning of Article 2(1) of the AIE Directive. It submitted that this is reflective of recital 16 of the AIE Directive which states:
“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 . Grounds for refusal should be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal. The reasons for a refusal should be provided to the applicant within the time limit laid down in this Directive.” (Emphasis added)
34. ESB submitted that the right of access to environmental information under the AIE Directive, as implemented in Ireland by the AIE Regulations, is intended to be broad but it does not establish a general or unlimited right of access to all information held by a public authority. It noted that in order to be entitled to a right of access, the information sought must fall into the concept of “environmental information”, per Case C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig) and Fish Legal.
35. ESB submitted that in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), the Court of Appeal highlighted that the interpretation of the AIE Regulations was not in doubt in the following terms:
“28. The proper approach to the interpretation of the 2007 Regulations is by now scarcely in doubt. As O’Donnell J. made clear when delivering the judgment of the Supreme Court in NAMA v. Commissioners for Environmental Information [2015] IESC 51 that the State’s obligations as a Member State of the E.U., “requires that the courts approach the interpretation of legislation in implementing a Directive, so far as possible, teleologically, in order to achieve the purpose of the Directive”.
36. ESB submitted that for the purposes of interpreting the AIE Directive, account has to be taken of the wording and aim of the Aarhus Convention (Fish Legal at §37). It submitted that the AIE Directive has been transposed into Irish law by way of the AIE Regulations and the definition of “environmental information” set out in Article 2 of the AIE Directive is mirrored in Article 3 of the AIE Regulations. ESB argued that it does not accept the appellant’s position that the information sought in respect of parts (2) – (5) of his request falls within article 3(1)(c) of the AIE Regulations, for reasons as summarised below.
37. ESB submitted that in order to qualify as “environmental information” under article 3(1)(c) of the AIE Regulations, the following three criteria must be met. Firstly, a measure or activity which the information is sought “on” must be identified. Secondly, this identified measure or activity must be “affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) or be measures or activities designed to protect those elements, and thirdly, the information sought must be “on” the identified measure and must be integral to that measure.
38. ESB submitted that article 3(1)(c) of the Regulations has been the subject of judicial consideration and the criteria upon which it is determined whether a request falls within this category of “environmental information” primarily derives from the decision of the Court of Appeal of England and Wales in Henney. It submitted that the decision of Henney has been considered and approved in a number of Irish judgments concerning the operation of article 3(1)(c) of the AIE Regulations, as set out below by ESB.
39. ESB submitted that in Redmond v Commissioner for Environmental Information [2020] IECA 83 (Redmond), the Court of Appeal considered the meaning of whether something was a “measure” within the meaning of article 3(1)(c):
“As explained by the Court of Appeal at §57 to determine whether something is a “measure” it is not appropriate to look at the information being sought “on” that measure but the measure itself must be identified and assessed to see if that measure is an act capable of affecting or protecting the factors of the environment set out in Article 3(1)(a) or (b).”
40. ESB submitted that there is to be an expansive view taken to what encompasses an “administrative measure” for the purposes of article 3(1)(c) per RTÉ and Case C-321/96 Mecklenburg v Kreis Pinneberg (Mecklenburg).
41. ESB noted that the appellant’s position is that the measure at issue in this matter is (i) the AIE Regulations and (ii) the Aarhus Convention. ESB submitted that it does not accept that either the AIE Regulations or the Aarhus Conventions are “measures” at issue in this review. ESB submitted that the information sought by the appellant is information “on” AIE reviews made to the Commissioner. As such, it argued that the question to address is whether the AIE reviews the subject of the AIE request are “measures” for the purpose of article 3(1)(c) of the AIE Regulations.
42. ESB submitted that the Court of Appeal in Redmond also referred to the earlier decision of Minch to support the position that “likely to affect” the environment referred to in article 3(1)(c) of the AIE Regulations should be understood as whether the measure is “capable” of affecting the environment (at §61). It submitted, in particular, the Court of Appeal held at §63 that:
“Drawing together these statements, it appears to me that, for the purposes of paragraph (c), a measure or activity is “likely to affect” the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly . 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).” (Emphasis added)
43. ESB noted that the appellant relies on two previous decisions of this Office to support the position that the AIE Regulations are a “measure” for the purposes of article 3(1)(c) of the AIE Regulations. Notwithstanding that ESB considers that the measure at issue is the previous AIE reviews to the Commissioner the subject of the appellant’s AIE request, it addressed these previous decisions, as set out below.
44. ESB submitted that the decision in CEI/12/0008, made in March 2013, concerned a request made to the Department of Arts, Heritage and the Gaeltacht for a list of all AIE requests received by the Department from 2011 onwards and consequential details. It noted that request was refused by the Department on the basis that it was not environmental information and that the Commissioner upheld the Department’s decision on the following basis:
“In this case, the appellant contends that her request is for environmental information, because granting her request would reveal information regarding the timeliness and efficacy of AIE decision-making. The timeliness and efficacy of AIE decision-making, in turn, affect the ability of the public to participate effectively in environmental decision-making and thus have an impact on the overall purpose of the AIE regime, which is to achieve a better environment through more effective public participation in environmental decision-making. The appellant therefore maintains that her request is for information on a measure or activity affecting or likely to affect the environment as well as for information on a measure or activity designed to protect the elements of the environment. In her submissions made in response to Ms. Campbell's preliminary view letter, the appellant emphasises in particular that the Directive is designed to protect the environment; therefore, she argues that any information on how public authorities operate under the Directive is information on a measure or activity designed to protect the environment.
I accept that the AIE Regulations and Directive are measures designed to protect the elements of the environment, but in an indirect and aspirational manner only . Recital (1) of the Preamble to the Directive reflects that AIE is intended to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. Public access to environmental information is thus expected to contribute "eventually" to a better environment. It does not follow, however, that any administrative action taken by public authorities under AIE is itself a measure or activity affecting or likely to affect the environment; nor is such administrative action necessarily a measure or activity designed to protect the environment.
Under AIE, applicants do not need to state an interest when seeking access to environmental information upon request. Thus, while it is envisioned under the Directive that public access to environmental information will lead, eventually, to a better environment, an interest in protecting the environment is not required in order the make an AIE request. Even where an applicant is interested in environmental protection, it is the action taken by the applicant when equipped with the environmental information s/he seeks that may, depending upon the circumstances, have a positive impact on the elements of the environment, not the access to the information in and of itself. I therefore consider that the link between AIE requests, including the administrative action taken on the requests, and any environmental impact is too remote and subject to too many variables for information on the requests to qualify as environmental information within the meaning of paragraph (c) the definition .
Moreover, in making decisions on whether or not to grant requests for access to environmental information, the staff of public authorities are simply carrying out their statutory functions in what should be a fair and impartial manner, having regard to various relevant interests, including the interests reflected in the grounds for refusal where appropriate. The intent of the applicant in making the request, however, is not a relevant consideration. Thus, while public access to environmental information may eventually lead to a better environment through more effective public participation in environmental decision-making, I do not accept that the processing of AIE requests by public authorities is itself "designed" to protect the elements of the environment or that it otherwise qualifies as a measure or activity within the meaning of paragraph (c) of the environmental information definition . I note that untimely or otherwise ineffectual decision-making by public authorities may unduly delay the grant of requests for access to environmental information, which is unfortunate and no doubt frustrating for applicants who are truly interested in seeking to protect the environment through more effective participation in environmental decision-making. Nevertheless, I do not consider that the intentions of certain applicants in making AIE requests can form a legitimate basis for finding that information on the processing of AIE requests is a measure or activity within the meaning of paragraph (c) of the environmental information definition .” (Emphasis added)
45. ESB submitted that the above previous decision of the Commissioner found that the processing of AIE requests by public authorities is itself not "designed" to protect the elements of the environment or that it otherwise qualifies as a measure or activity within the meaning of paragraph (c) of the environmental information definition. It submitted that this is the same point at issue in this review.
46. ESB noted the appellant’s reference to the decision in OCE-93406-G5Y0Y0, made in August 2020. ESB submitted that, insofar as that decision has any relevance to the present review, it relates to a statement by the Commissioner that it was “found in Case CEI/12/0008 …… that the AIE Regulations and Directive are measures designed to protect the elements of the environment”. However, ESB argued that, for the reasons outlined above, the decision in CEI/12/0008 does not support the appellant’s position.
47. ESB submitted that, insofar as the Commissioner has previously determined that the AIE Regulations and Directive themselves may be measures for the purpose of article 3(1)(c), such a finding was limited and on the basis that they are “measures designed to protect the elements of the environment, but in an indirect and aspirational manner only”. Further, it submitted that the Commissioner found that not all administrative action taken by public authorities under AIE is itself a measure or activity affecting or likely to affect the environment or designed to protect the environment. ESB argued that in CEI/12/0008, the Commissioner upheld a refusal by the public authority to provide details of all AIE requests made along with details of dates and timelines that appeals were determined and stated that “I do not accept that the processing of AIE requests by public authorities is itself is "designed" to protect the elements of the environment or that it otherwise qualifies as a measure or activity within the meaning of paragraph (c) of the environmental information definition.”
48. ESB submitted that, in light of Redmond, the question to be asked is whether there is a real and substantial possibility that the AIE reviews will affect the environment on the facts of this matter. It submitted that, in the current matter, there is nothing more than a remote or theoretical possibility of effect or protection on the environment. ESB submitted that, as pointed out in Redmond at §63, if the remote or theoretical possibility of affect or protection on the environment were to be included in article 3(1)(c) it would offend against the CJEU dicta in Glawischnig which held that the AIE Directive does not provide a general and unlimited right of access to all information held by public authorities.
49. ESB submitted that, “it is not accepted that AIE reviews to the Commissioner the subject of this AIE request are measures or activities “affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b)” or “designed to protect those elements” within the meaning of article 3(1)(c) of the AIE Regulations.
50. ESB noted wherein the appellant submitted that the Commissioner ought to follow its earlier decision unless there is good reason not to do so, based on ESB No. 2. In this regard, it submitted that in ESB No. 2, Heslin J held that:
“It was neither submitted by the Appellant nor is it suggested by this court the Commissioner’s first decision was binding upon him . That is not the point, however. In circumstances where there was no intervening decision which clarified the legal position, the Commissioner’s ‘change of mind’ came with the obligation to provide adequate reasons so that his change of mind could be understood. It has long been settled law that a decision maker is obliged to give reasons for its decision.” (Emphasis added)
51. ESB submitted that Heslin J confirmed that the Commissioner is not bound by an earlier decision, but in a case where no intervening decision clarified the legal position, the Commissioner was required to give reasons for not following an earlier decision on the same point.
52. ESB noted the appellant’s contention that both the AIE Regulations and the Aarhus Convention are “measures” for the purposes of article 3(1)(c) of the AIE Regulations. ESB submitted that the Commissioner has not previously determined whether the Aarhus Convention is a measure for the purpose of the AIE Regulations in either of the decisions cited by the appellant and has only determined previously that the AIE Regulations are a measure in “an indirect and aspirational manner only”. ESB submitted that, in the present matter, parts (2) – (5) of the appellant’s request relate to information in relation to the processing of AIE reviews to the Commissioner and are not designed to either affect or protect the environment.
53. ESB submitted that, without prejudice to the foregoing, insofar as the Commissioner finds that the AIE reviews are a measure capable of affecting the environment, the remainder of the criteria needed to be met in article 3(1)(c) are addressed below.
54. ESB submitted that only information “on” the measure that is relevant is captured and information that is too remote will not qualify as “environmental information”. It argued that the information in parts (2) – (5) of the AIE request relates to external legal advice information (i.e. whether any external legal advice was sought, from where this advice was sought and how much this cost) “on” the AIE reviews to the Commissioner between 2021-2023.
55. ESB submitted that the decision of Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB No. 1) addresses the concept of information “on” a measure and is heavily influenced by Henney.
56. ESB submitted that the issue in Henney, as summarised by O’Regan in ESB No. 1, was when and whether information on a measure which does not in itself affect the state of the elements of the environment or factors, can be information “on” another measure which does so affect. It submitted that in Henney, there was agreement that the Smart Meters Programme as a whole was likely to affect the relevant elements and factors but the appellant argued that one component thereof did not qualify as it did not include relevant environmental information. ESB noted that the UK Court of Appeal found that the relevant component was “on” the programme as a whole because it was integral to the success of the programme as a whole. ESB submitted:
“As explained by O’Regan in [ESB No. 1] at §41 citing Henney “information is “on” a measure if it is about, relates to or concerns the measure in question” and that “some types of information that are relevant to a project which itself has some environmental impact do not amount to environmental information within the Regulations and that the information in the disputed component in Henney was “integral” and “critical” to, and a “key element” to the success of, the overall programme” (i.e. that the information on the measure was not incidental).”
57. ESB submitted that, as further explained by O’Regan J in ESB No. 1 at §43, Henney also suggests that identifying the measure that the disputed information is "on" requires consideration of the wider context and it is not strictly limited to the precise issue with which the information is concerned, with the UK Court of Appeal having identified that it may be relevant to consider “the purpose for which the information was produced, how important the information is to that purpose, how it is to be used, and whether access to it would enable the public to be informed about, or to participate in, decision making in a better way” (at §43 of Henney). ESB submitted that this point is also addressed at §99 of Redmond where it was held that:
“The decision of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner indicates that there may be some scope for debate on that issue, with Beatson LJ suggesting that regulation 2(1)(c) should be “read down” by reference to the purpose of the Aarhus Convention and the AIE Directive to provide for access to environmental information so as to enable members of the public to be better informed and better able to contribute to environmental decision-making. Information not relevant or useful to that purpose, he suggests, may not be required to be provided.”
58. ESB submitted that at §43 of ESB No. 1, it was held that Henney had found that “[t]he information itself need not be intrinsically environmental and the task is to find the line between information which qualifies, and that which does not qualify by reason of being too remote”. ESB submitted that this distinction has been recently referred to by the Commissioner in OCE-128538-M9C1X7 ) as a “sliding scale, with information integral to a measure at 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)”.
59. ESB submitted that, having regard to the facts of the present review, the information sought in this review is whether ESB has taken any external legal advice, from where this advice was sought and how much this cost in respect of AIE reviews to the Commissioner between 2021-2023. In light of Henney, ESB submitted that the Commissioner may consider the purpose of this information, how important the information is to that purpose, how it is to be used and whether access to it would enable the public to be informed about or participate in decision-making in a better way.
60. ESB submitted that whether a public authority obtains external legal advice on an AIE review to the Commissioner could only ever be used for the purpose of advising that authority on that review and is an administrative action taken on foot of such a review. ESB argued that access to knowing whether such advice was sought, from whom and how much it cost cannot be said to enable the public to be informed about or participate in decision-making in a better way and is simply too remote.
61. ESB maintained its position that the previous AIE reviews are the “measure” to be considered in the present review and that the processing of AIE reviews by a public authority does not qualify as a measure for the purpose of article 3(1)(c) of the AIE Regulations. It submitted: “Furthermore, administrative action taken on foot of such a review by ESB, in this review, the obtaining of external legal advice, and any potential environmental impact from the AIE reviews at issue are simply too remote and are not integral to the AIE reviews at issue to come within the definition of environmental information.”
62. ESB noted the previous decisions of the Commissioner relied on by the appellant to support the position that legal costs are capable of being environmental information.
63. ESB submitted that in OCE-100993-X1G6Q1, the Commissioner considered whether legal proceedings are a “measure” or “activity” within the meaning of article 3(1)(c) of the Regulations. It submitted that the Commissioner’s analysis focused on the expansive approach to the scope of the concept of “environmental information” as found by the Irish Courts and the CJEU. It submitted that the Commissioner found that legal proceedings were prima facie both a measure and activity within the meaning of article 3(1)(c) of the AIE Regulations and then went on to consider whether those legal proceedings “affect or are likely to affect the environment” for the purpose of Article 3(1)(c) and referred to the decision in Redmond. ESB submitted that the Commissioner addressed the nature of the legal proceedings at issue in OCE-100993-X1G6Q1, which was a statutory appeal taken by Coillte following a decision of the Commissioner directing the release of environmental information. ESB submitted that the Commissioner found that those legal proceedings were likely to affect the environment for two reasons: (i) the proceedings themselves led to a delay in the processing of the AIE request at issue, and (ii) 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 accepted had a significant environmental aspect to them. ESB cited paragraphs 45. – 46. of the decision as follows:
“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.
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.” (Emphasis added)
64. ESB submitted that the AIE request at issue in this appeal does not seek cost information in respect of legal proceedings and therefore the decision in OCE-100993-X1G6Q1 does not support the appellant’s contention that the Commissioner has previously decided that the categories of information sought by the appellant are “environmental information”.
65. ESB submitted that the decision in OCE-136880-Q2N3W3, as referenced by the appellant, relates to a request made to An Bord Pleanála for information regarding the breakdown of costs related to judicial review proceedings. It submitted that the outcome of that decision was annulment and remittal to the public authority to undertake a fresh decision in respect of the AIE request, made in circumstances where the Commissioner found that An Bord Pleanála had failed to identify whether relevant information came within the scope of the request. ESB also argued that that the underlying request in this case related to judicial review proceedings and not a review to the Commissioner and that the determination of that decision does not support that parts (2) – (5) of the appellant’s AIE request in the current case is environmental information.
66. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out this review, I have had regard to the submissions made by the appellant and by ESB. 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 [2020 IECA 83 ] (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020 IEHC 190 ] (ESB No. 1), Right to Know v Commissioner for Environmental Information & RTÉ [2021 IEHC 353 ](RTÉ) and Electricity Supply Board v Commissioner for Environmental Information [2024 IEHC 17 ] (ESB No. 2);
• 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 No. 1, RTÉ and ESB No. 2;
• the decision of the UK Upper Tribunal in Department for Transport, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018 UKUT 127 (AAC) ] (Porsche);
• the decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig) and C-470/19 Friends of the Irish Environment Ltd v Commissioner for Environmental Information (Friends of the Irish Environment);
• 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’).
67. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Definition of “environmental information”
68. 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)”
69. 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.
Identification of a measure or activity
70. 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 No. 1 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).
71. The appellant contends that the relevant measure in this case is the AIE Regulations. He also notes that this Office has already held in previous cases, including CEI/12/0008 and OCE-93406-G5Y0Y0, that the AIE Regulations come within the concept of measures designed to protect the environment and therefore are within category (c).
72. ESB submits that neither the AIE Regulations or the Aarhus Convention are “measures” in this case. It contends that the information sought by the appellant at parts (2) – (5) of his request is information “on” AIE reviews made to the Commissioner and it considers that the question to be addressed is whether the AIE reviews the subject of the AIE request are “measures” for the purpose of article 3(1)(c). In this regard, ESB does not accept that the relevant AIE reviews are measures or activities “affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b)” or “designed to protect those elements” within the meaning of article 3(1)(c) of the AIE Regulations.
73. I consider that the measure chosen by ESB in analysing whether the information sought is environmental information is overly narrow. In my view, the relevant measure is the implementation of the AIE Regulations by ESB. This is the case in respect of all parts of the appellant’s AIE request, which I view as interrelated. 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 ESB 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. I will elaborate on my considerations below.
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
74. 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).
75. The spirit and intent of the AIE process, 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”. The AIE Regulations and perhaps more so, the manner in which the Regulations are implemented by public bodies such as ESB, determines the extent to which this intent is advanced. Therefore, it is clear to me that there is a real or substantial possibility this measure can be said to have, at least, an indirect effect on the environment.
76. According to its website ESB describes its business as follows:
“At ESB, we have been Ireland's foremost energy company since our establishment in 1927. We are driven to make a difference by achieving zero carbon emissions by 2040. We are a strong, diversified utility operating right across the electricity market: from generation, through transmission and distribution, to supply. We also work in other related sectors where we can make a difference, including telecommunications, electric vehicle charging, home retrofits and more.”
77. The Sustainability section of ESB’s website states: “Climate change is one of the defining challenges of this generation. Its impact is evident in increasingly extreme weather patterns, rising sea levels, water shortages and disruption to biodiversity and ecosystems. Electricity has a transformative role to play in tackling climate change by eliminating carbon and other harmful greenhouse gas emissions from the energy sector. The pace of decarbonisation and electrification is critical in determining whether it will be possible to stay below 1.5°C of planetary warming. At ESB, every part of our business is working to remove carbon from the electricity system and support the decarbonisation of Irish society, in line with ourNet Zero by 2040 strategy . And more broadly, we are striving to embed sustainability leadership right across our operations. Through electricity as an enabler of regeneration, we are driven to make a difference for planet, place and people.” It goes on to outline ESB’s strategic objectives in this regard, which I have summarised below:
• Decarbonising our Electricity System – ESB states that it is developing and connecting renewable energy to decarbonise the electricity system by 2040. ESB outlines that it is investing in the development of new renewable generation, including onshore and offshore wind and solar, and significantly increasing the amount of renewable generation connected to its electricity networks.
• Building Resilient Infrastructure – ESB states that it is investing in infrastructure to maintain reliable and secure electricity supplies to facilitate the high levels of renewable generation and to support a growing dependence on electricity across all sectors. ESB outlines that it is developing smarter, more resilient networks to accommodate the electrification of transport and heating as well as critical energy storage capacity.
• Empowering Customers – ESB states that it is empowering, enabling and supporting customers and communities to achieve net zero carbon emissions. ESB outlines that this reflects its longstanding commitment to providing the latest and most innovative infrastructure, products and services to help its customers live more efficiently and sustainably.
78. On the above basis, it is clear that many of the activities of ESB affect or are likely to affect the elements of the environment referred to in paragraphs (a) and (b) of article 3(1) of the AIE Regulations. It follows therefore that ESB holds large amounts of environmental information, access to which is important to enable members of the public to know and understand what is happening in the environment around them and effectively participate in environmental decision-making.
79. In the High Court’s recent judgment in ESB No. 2, Heslin J. was following Collins J. in Redmond, at para. 63, and approved the English decision of Beatson L.J. in Henney, that there must be “a real and substantial possibility that [the measure] will affect the environment, whether directly or indirectly”.
80. It is clear from the Recitals of the Aarhus Convention that the very purpose of the AIE Regime is environmental protection. For example, Recital 9 states: “in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns.”
81. Thus the implementation of the AIE Regulations by a body such as ESB self-evidently has an impact on the environment. At a minimum, decisions made without transparency and public participation will lack public support. This point is made in Recital 10 of the Aarhus Convention itself:
“Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment”
82. As stated in Recital 1 of the Directive, implementation of the AIE regime will lead to a better environment. The measure, therefore, is “likely to affect” the environment as there is a real and substantial possibility that it will affect the environment.
83. In my view, it is evident that there is a real and substantial possibility that many of the activities of ESB, not least its strategy to decarbonise its electricity system, will affect the environment in a significant manner.
84. The nature and of ESB’s business means that the manner in which it implements the AIE regime as a whole (both in relation to access requests and its organisation and dissemination obligations in article 5 of the Regulations and Article 7 of the Directive) is likely to have an impact on the environment. In my view, to say otherwise is the same as saying that the access to information provisions of the Aarhus Convention will not lead to a better environment and the aims of that Convention, as set out in its recitals, will not be met. I cannot accept that this is the case. It was clearly the view of the signatory States to the Aarhus Convention that having access to environmental information will achieve the aims of Recital 9, set out in paragraph 69.
85. Similarly, it was also the views of the signatory States that there can be no effective public participation in environmental matters without information, as set out in recitals 7 and 8:
“Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations,
Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,”
86. Accordingly, I am satisfied that the implementation of the AIE Regulations by ESB is a measure affecting or likely to affect the elements of the environment as set out in paragraph (c) of the definition of environmental information.
87. I understand that this is a departure from the conclusion of a previous Commissioner in CEI/12/0008. In ESB No. 2 the High Court overturned a decision of this Office on a number of bases, including that the Commissioner had departed from a previous decision without giving adequate reasons for this change of position.
88. The decision in CEI/12/0008 was issued in 2013, almost twelve (12) years ago. In that time there have been a number of Irish, English and EU cases that have clarified the law in relation to the definition of environmental information. I would refer in particular to the Minch, Redmond and Henney judgments. Minch clarified the test for whether a measure had an impact on the elements and factors on the environment while Redmond clarified that the information itself does not need to have this impact, but the focus was on the measure in question.
89. In CEI/12/0008 the then Commissioner concluded that the AIE regime was designed to protect the environment, but only in an “indirect and aspirational way”. In my view the analysis in that decision that allowed the then Commissioner to reach that conclusion would not succeed in light of the tests set out in Minch and Redmond. For example, the decision in CEI/12/0008 states that the connection between an AIE request and any impact on the environment is too remote. But in Minch the Court of Appeal states that the test was whether the measure was capable of having an impact on the environment. Applying that test I think that it is clear that in this case how ESB implements the AIE regime is capable of having an impact on the environment given the extent of its environmental operations and the quantities of environmental information that it holds.
90. Later on in that decision, the conclusion is that the processing of AIE requests is not “designed” to protect the environment. In my view that is not the correct analysis. It is more correct to say that 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.
91. Finally, the decision in CEI/12/0008 states that the intention of an applicant in making a request is not a relevant consideration. I do not believe that this is correct. What is at issue here is whether the AIE regime as implemented by ESB affects or is likely to affect the environment. While the requestor does not have to state their interest in making the request, that does not mean that the framework in which a request is made cannot be used to consider whether a measure has an impact on the environment.
92. But even if I am wrong in this, I simply do not accept that the AIE regime has environmental protection only as an indirect or aspirational aim. The very purpose of the regime is environmental protection and I have set this out above. The signatory States to the Convention, and the EU legislature in drafting the Directive, put environmental protection at the heart of the access regime. It is the very purpose of the Aarhus Convention, and access to information is one of three limbs that allows Member States to achieve that aim. To claim that this is indirect or aspirational is wrong as a matter of law.
Whether the information is ‘on’ the measure or activity
93. 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. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure” (at paragraph 48).
94. Importantly, while Henney uses the terms “critical”, “fundamental” or “integral”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
95. I note in its submissions that ESB refers to the purposive test as articulated in Henney. 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 RTÉ case (see paragraph 52) and is also referenced in the recent ESB No. 2 judgment.
96. The purpose and outcome of any engagement on ESB’s part of external lawyers in the AIE process is done to ensure the proper implementation of the AIE Regulations and thereby facilitating appropriate access to environmental information. I consider that such intention would clearly serve to advance the purpose of the AIE Regulations, and consequently the Directive and the Aarhus Convention. Rather than an incidental element, I would consider this in fact to be central to the implementation of the legislation, in particular in situations where a public authority which has adopted the principles and provisions of corporate governance set out in the Code of Practice for the Governance of State Bodies considers it necessary to expend resources in this way.
97. ESB’s submissions to this Office noted the requestor’s stated reasoning for seeking the information in question, i.e. to inform a submission to the ACCC on the prohibitive cost of appeals to this Office. ESB contends that the appellant’s motivation is irrelevant for the purposes of determining that request. However, I am of the view, as outlined above, that the context/potential use of the information in this case is relevant to an assessment under Henney.
98. The ACCC was established under Article 15 of the Aarhus Convention. The Committee serves as a compliance mechanism whereby Parties to the Convention or members of the public may, for example, bring a concern regarding the implementation of the Convention to the Committee for consideration. Members of the public and NGOs bring access to justice issues before the Compliance Committee in situations where they consider that the relevant domestic legal framework fails to comply with any of the requirements of Article 9 of the Convention, either generally, in the systemic sense, and / or in relation to a specific case.
99. The appellant contends that the issue of costs and financial barriers to the exercise of environmental rights is an important aspect of the Aarhus Convention. I note that Article 9 of the Convention in particular addresses a wide range of important practical matters concerning access to justice, including that the costs involved in engaging and participating in the review procedure must be affordable (‘not prohibitively expensive’).
100. I consider that the type of information sought by the appellant may indeed be relevant to the Committee, for example, if it is alleged that arrangements for access to justice are inaccessible due to prohibitive costs. Consideration of wider operability of the AIE regime, including possible complexity of the legislation may also be warranted, in particular if it can be shown that public authorities such as ESB regularly consider it necessary to engage external lawyers in order to correctly apply the legislation (other than on an exceptional basis).
101. In addition, I consider that the legal representation and costs information requested in parts (2), (3), (4) and (5) of the AIE request is information ‘on’ the measure because it is information that gives an insight into ESB’s approach to its obligations. It also influences the approach that a requester must take if it is to successfully obtain environmental information from ESB or engage effectively with the OCEI on appeal, in turn impacting on the ability of some requesters to successfully obtain information. For example, if the information provided by ESB suggests that legal advice or assistance is sought in relation to many of the AIE requests made to ESB, a requester could conclude that their requests ought to be framed in a manner that fully addresses any legal concerns that might arise. Similarly, if the information suggests that legal advice or assistance is sought in relation to many of the appeals to this Office, an appellant could conclude that they are likely to have to engage with legal points in any appeal to this Office if they are to participate effectively in the appeal process. This is notwithstanding the inquisitorial role of this Office.
102. I am therefore satisfied that information concerning the costs of engaging external legal services for processing AIE requests, appeals and litigation is information that is on the implementation of the AIE Regulations by ESB and is not at such a remove from the AIE process to render it too remote. As such, I am satisfied that all of 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. The appellant has set out a clear process that he is engaging in and how the information will assist him in that process. It is in this framework that I consider that the information is on the AIE regime. The appellant will be better informed by access to this information and better able to contribute to an environmental process. Release of the information advances the purposes of the Aarhus Convention and the Directive. On that basis, I am remitting the matter to ESB for consideration of release of the information requested in accordance with the provisions of the AIE Regulations.
103. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I hereby annul ESB’s 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.
104. 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