Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-130492-F6M6S4
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
6 June 2024
1. On 18 September 2022, the appellant submitted an AIE request to the Revenue Commissioners that related to the Hebble Sand ship located in Drogheda Port “and which recently sank in the port and is reported to be discharging pollution into the river Boyne. The ship is in an SAC [Special Area of Conservation] and in close proximity to other European Sites protected under the Habitats Directive”. The request for information was as follows:
1. Name and contact details of the registered owner of the Hebble Sand;
2. Extract from the General Register of Shipping for the Hebble Sand;
3. All supporting documentation in relation to its registration.
2. The appellant made the point, for the avoidance of doubt, that the request was not an FOI [Freedom of Information] request.
3. On 13 October 2022, the Revenue Commissioners made a decision on the request, stating that the information requested was not environmental information as defined by article 3(1) of the AIE Regulations and refusing the request. The decision letter noted that the requester might “wish to submit a Freedom of Information request as records may be available for release under the Freedom of Information Act 2014.”
4. On the same date, the appellant submitted an internal review request. It submitted that the request was for environmental information as it “relates to environmental elements and factors as the vessel in question “is an element of the environment and is discharging pollutants into the environment.”
5. Again on the same date, the Revenue Commissioners responded by email to the internal review request. It acknowledged the requester’s concerns relating to the environment. However, it went on to state that “the specifics of the information…requested…are not environmental” as outlined in the decision letter and to suggest the submission of an FOI request, given that records might exist “which can be released to you under the Freedom of Information Act 2014 that are unavailable through an AIE request.”
6. On the next day, 14 October 2022, the Revenue Commissioners issued its internal review decision, affirming the original decision and refusing the request. The letter reiterated that records might be available for release under the FOI Act 2014.
7. On 3 November 2022, the appellant submitted an appeal to this Office.
8. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In so doing, I have considered the submissions made by the appellant and the Revenue Commissioners. I have also examined the information provided by the Revenue Commissioners to this Office. In addition, I have had regard to:
• 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 Mercantile Marine Act 1955;
• the Sea Pollution Act 1991, as amended;
• 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; and
• the decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), and C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig).
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. The scope of this review is confined to whether the information requested by the appellant is “environmental information” within the meaning of the AIE Regulations.
10. Article 3(1) of the Regulations defines “environmental information” as “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).
11. The AIE Regulations transpose the AIE Directive at national level and the definition of “environmental information” in the Regulations, mirrors that contained in the Directive. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information and enable an informed public to participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive.
12. According to national and EU case law on this matter, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg, paragraph 19), there must be more than a minimal connection with the environment (Glawischnig, paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond, paragraph 58, see also ESB, paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the scope of the definition of environmental information. Otherwise, the scope would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
13. The right of access to environmental information encompasses access to information “on” one or more of the six categories set out at (a) to (f) of the definition. In his decision in RTÉ, Barrett J expressly endorses the approach set out by the Court of Appeal of England and Wales in Henney to determine the “information on” element of the definition of “environmental information” (RTÉ, paragraph 52). The first step is to identify the relevant element of the definition to which the information in question relates.
14. I note the appellant’s contention in its request for an internal review of the original decision and its appeal to this Office that the vessel in question in this appeal is an element of the environment and that, therefore, the request is for environmental information as it relates to environmental elements and factors. This suggests the appellant considers the information to come within paragraphs (a) and (b) of the definition. However, the submission provided to this Office by the appellant argues that “the information is environmental information because it is about, relates to or concerns the Hebble Sand ship which is an element of the environment and it is about, relates to or concerns an activity which affects or is likely to affect the environment, namely the mooring of a derelict ship in Drogheda port”. It submits that the ship “affects or is likely to affect the environment because it has sank [sic] and has been said to have discharged oil into the Boyne River” and “is also affecting the urban environment in Drogheda due to the unsightly nature of the ship which is moored in the centre of the town and is visible from residential and commercial properties and to the general public”. It submits that the ship is “incapable of operating and…has been left abandoned in Drogheda Port for over a decade” during which time “it has decayed and…sank in the Port in early September 2022”. It also refers to an Irish Independent article of 13 September 2022 in which the CEO of Drogheda Port is quoted as noting that Drogheda Port Company had “activated its pollution response to mitigate any immediate oil or potential oil leakage from the vessel” and that “the vessel owners…have indicated to the company that they are proceeding to secure and re-float the vessel on the most suitable tide this week and will then put a plan in place with the relevant authorities for its removal from the port” (see: https://www.independent.ie/regionals/louth/drogheda-news/foundering-hebble-sand-at-drogheda-port-to-be-re-floated/41986559.html ). The appellant submits that while the vessel has been re-floated “it remains a pollution risk and an eyesore” and is located within the Special Area of Conservation of the River Boyne and River Blackwater and hydrologically connected to the Special Protection Area of the Boyne Estuary and the Special Area of Conservation of the Boyne Coast and Estuary”.
15. The appellant’s argument is therefore that the information requested is information “on” an element of the environment and an activity affecting the environment within the meaning of paragraphs (a) and (c) and thereby satisfies the definition of “environmental information”. The Revenue Commissioners submit that “the relevant registration forms are set out in a prescribed format and do not include environmental information as defined under article 3(1) of the AIE Regulations”. It argues that “the Marine Survey Office in the Department of Transport is responsible for the implementation of all national and international legislation in relation to the safety of shipping and the prevention of pollution of the marine environment from ship-based sources”.
16. The Revenue Commissioners submit that Revenue “are responsible for the administration of the procedure for the registration of ships by maintaining the Register in the manner required, by accurately recording the details required and ensuring that the associated procedures are carried out in accordance with the governing legal provisions”.
17. I will commence my analysis by considering paragraph (c) of the definition.
18. Paragraph (c) of the definition of “environmental information” refers to information on “measures (including administrative measures) such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements”. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond, paragraph 63). Information may be “on” one measure or activity, on more than one measure or activity or on both a measure or activity which forms part of a broader measure (Henney, paragraph 42). In identifying the relevant measure or activity that the information is “on” one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB, paragraph 43).
19. The Aarhus Guide notes that the Aarhus Convention expressly includes “administrative measures, environmental agreements, policies, legislation, plans and programmes” when referring to “measures” and “activities” likely to affect the environment in the context of its definition of “environmental information”. Similar wording is used in article 2(1)(c) of the AIE Directive and article 3(1)(c) of the AIE Regulations. The Aarhus Guide notes that the use of these terms suggests that some degree of human action is required. The Guide also describes the terms “activities or measures” as referring to “decisions on specific activities, such as permits, licences, permissions that may have an effect on the environment”. The Court of Appeal in Minch was of the view that the reference to “plans” and “policies” in article 3(1)(c) is significant, and suggests that the “measure” or “activity” in question must have “graduated from simply being an academic thought experiment into something more definite such as a plan, policy or programme – however tentative, aspirational or conditional such a plan or policy might be – which, either intermediately or mediately, is likely to affect the environment” (paragraph 39). Hogan J went on to explain that this requirement for there to be a plan or something in the nature of a plan, curtails a potentially open-ended or indefinite right of access to documents (paragraph 41). If this were not the case, then virtually any information held by or for a public authority referring, either directly or indirectly, to environmental matters would be environmental information. This would run contrary to the CJEU’s judgment in Glawischnig (see paragraphs 21 and 25).
20. The CJEU in Mecklenberg stated at paragraph 20 of its judgment that “the use in Article 2(a) of the Directive of the term ‘including’ indicates that ‘administrative measures’ is merely an example of the ‘activities or measures’ covered by the Directive”. It noted that “as the Advocate General pointed out in paragraph 15 of his Opinion, the Community legislature purposely avoided giving any definition of ‘information relating to the environment’ which could lead to the exclusion of any of the activities engaged in by the public authorities, the term ‘measures’ serving merely to make it clear that the acts governed by the directive included all forms of administrative activity”.
21. Barrett J remarked in RTÉ that “the European Court of Justice [in Mecklenberg] could not have taken a more expansive view of what comprises an administrative measure for the purposes of the 1990 directive” (paragraph 19). He also noted that Recital 2 of the current AIE Directive should be borne in mind when approaching case-law, such as Mecklenberg, which is concerned with Directive 90/313/EEC, the predecessor to the current AIE Directive (RTÉ, paragraph 7). Recital 2 of the AIE Directive provides as follows:
“Council Directive 90/313/EEC of 7 June 1990 on the freedom of access to information on the environment initiated a process of change in the manner in which public authorities approach the issue of openness and transparency, establishing measures of the exercise of the right of public access to environmental information which should be developed and continued. This Directive expands the existing access granted under Directive 90/313/EEC…”
22. Barrett J considered the reference to the current AIE Directive having “initiated a process of change” to be noteworthy and concluded that “what had been in play over the course of the lifetime of [the previous AIE] directive and its more recent successor is an evolutionary process”, the consequence being that “one must approach the current directive as being not just expansive but increasingly so” (RTÉ, paragraph 8). He also stated that it was “difficult to conceive of how the Community legislature could have taken a more expansive approach to the scope of the concept of ‘environmental information’”, having regard to Recital 10 of the current AIE Directive (RTÉ, paragraph 9).
23. In this case, the appellant is seeking information relating to ownership and registration of a sea vessel that is reported as discharging pollution into a river. It considers the presence of the vessel to pose a risk to the environment and alluded to this in its original request to the Revenue Commissioners by including a link to a newspaper article dated 8 September 2022 with the headline “[s]erious pollution threat to Boyne River from sinking Drogheda dredger” (see: https://www.independent.ie/regionals/louth/drogheda-news/serious-pollution-threat-to-boyne-river-from-sinking-drogheda-dredger/41971262.html ).
Identification of a measure or activity
24. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
25. The Mercantile Marine Act 1955 (the 1955 Act), as amended, lays down the legal provisions for ship registration. A guidance note issued by the Department of Transport describes the registry of Irish ships as “the procedure whereby details of Irish ships, shares therein and the ownership thereof are recorded in the Register maintained by the Revenue Commissioners for this purpose.” The Revenue Commissioners are responsible for the administration of the procedure for registration by maintaining the Register in the manner required, by accurately recording the details required and ensuring that the associated procedures are carried out in accordance with the governing legal provisions. The 1955 Act gives the chief officer of customs and excise at any port of registry and any other officer of customs and excise appointed for the purpose by the Revenue Commissioners the faculty to be registrars of ships for the purposes of the Act (section 23(1)). Having considered the nature of the process, I am satisfied that the registration of ships generally, and of the Hebble Sand in particular is an administrative measure under paragraph (c) of the definition of environmental information.
Whether the measure/activity affects or is likely to affect the environment
26. There are various environmental and other technical standards with which Irish registered ships must comply. By way of example, section 14(1) of the Sea Pollution Act, provides that the Minister “may require the owner or master of a ship, or ship of a prescribed class,registered in the State ” [emphasis added] to have the ship constructed, fitted or operated in such a manner or to comply with other specified requirements “so as to prevent, control or reduce the discharge into the sea of oil, oily mixtures, noxious liquid substances, harmful substances, sewage, garbage [and] substances subject to control by Annex VI to the International Convention for the Prevention of Pollution from Ships (the MARPOL Convention)”. Section 10(1) of the Act provides that the Minister may make regulations prohibiting or regulating the discharge anywhere at sea from a ship registered in the State or the discharge in the State from any ship of any oil, oily mixture, noxious liquid substance, harmful substance, sewage, garbage, substances subject to control by Annex VI to the MARPOL Convention, anti-fouling systems or ships’ ballast water and sediments.
27. As can be seen from the administrative consolidation of the Sea Pollution Act on the Law Reform Commission’s website, these powers have been used on at least 26 different occasions and it is clear the registration of a ship in Ireland imposes significant obligations on those owning and/or controlling the ship. For example, the primary regulations in relation to oil pollution are the Sea Pollution (Prevention of Oil Pollution) Regulations 2007. The original version of these regulations are 121 pages long and they have been amended on a number of occasions. These regulations put a number of clear obligations on registered ships, including the obligation to survey certain oil tankers to ensure that the ship complies with the regulations in order to obtain certification to allow the ship to proceed to sea. Since the dominant purpose of these regulations is the prevention of oil pollution, the survey and certification process operates as a clear measure of environmental protection.
28. I consider that the registration of ships is a key element of the enforcement of the above standards as set out by the Sea Pollutions Act. Registered ships are required to be clearly marked to facilitate their identification and the details of ownership are required to be included on the register maintained by the Revenue Commissioners. Registration puts certain obligations on owners. Thus the registration of ships contributes to the protection of the environment and the mitigation of pollution from ships by facilitating the imposition of penalties under the Sea Pollution Act since it makes identification of a ship and those responsible for compliance with any legal obligations relating to it easily identifiable and pursuable. I am therefore satisfied that the registration of ships generally and the registration of this particular ship, is a measure or activity that affects or is likely to affect the environment within the meaning of article 3(1)(c) of the definition of environmental information.
Whether the information sought is “on” the measure or activity
29. The next question to consider is whether the information requested by the appellant is information “on” the measure of ship registration or the activity. RTÉ (paragraph 52) endorses the approach set out in Henney. The Court in Henney found that “information is ‘on’ a measure if it is about, relates to or concerns the measure in question” (see paragraph 37, emphasis added).
30. In support of this conclusion, 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 in the Convention and Directive may have to be assessed and provide a framework for determining the question of whether information is on a particular measure. Finally, as the High Court noted in ESB information that is integral to a measure or activity is information “on” it while information that is too remote from the relevant measure or activity does not qualify as environmental information (ESB, paragraphs 38, 40, 41 and 43). My reading of the guidance provided by the Courts in Henney, ESB and RTÉ is that there is a sliding scale, with information integral to a measure or factor at one end (in the sense that it is quite definitively information “on” a measure or factor) and information considered too remote from the relevant measure or factor at the other (in the sense that it is not). The example referred to in Henney noted that a report on PR and advertising strategy might be considered information “on” the Smart Meter Programme “because having access to information about how a development is to be promoted will enable more informed participation by the public in the programme”. However, information relating to a public authority’s procurement of canteen services in the department responsible for delivering a road project would likely be considered too remote (see paragraph 46).
31. To recall, the appellant’s request was for:
1. Name and contact details of the registered owner of the Hebble Sand;
2. Extract from the General Register of Shipping for the Hebble Sand;
3. All supporting documentation in relation to its registration.
32. In this vein, the appellant submits that “it is fully within the objectives of the Aarhus Convention and the AIE Directive for the public to be fully aware of all the particulars concerning a ship that is affecting the environment, especially a sensitive environment like the Boyne River”.
33. Section 30 of the Mercantile Marine Act 1955, as amended, sets out that where the requirements of the Act, preliminary to registry, have been complied with, the registrar shall enter in the register book the following particulars respecting the ship:
a. the name of the ship and her port of registry
b. the details comprised in the surveyor's certificate
c. the particulars respecting her origin stated in the declaration of ownership; and
d. the name and description of her registered owner or owners, and if there are more owners than one, the proportions in which they are interested in her
34. I am satisfied that details of the registered owner of the ship, the information contained in the General Registry with regard to the Hebble Sand and any supporting information provided in respect of its registration are sufficiently connected to the registration of that ship to constitute information “on” the measure.
35. For the reasons given, I consider that information relating to the registration of a ship is “information on” a measure or activity as defined in article 3(1)(c) of the AIE Regulations, such that it is information on the environment as defined in that article.
36. I am therefore satisfied that the information requested by the appellant in this case falls within the definition of “environmental information” contained in article 3(1)(c) of the AIE Regulations. On that basis, I do not consider it necessary to examine whether, as the appellant suggests, the information might also fall within paragraph (a) of the definition.
37. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the decision of the Revenue Commissioners. The appellant should be provided with a new internal review decision.
38. 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