Cinneadh
Mr X and Department of Social Protection
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-127075-M0K8W9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-127075-M0K8W9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified, under the AIE Regulations, in refusing access to information concerning the appellant’s transfer internally within the Department to town 1 in 2013 and externally to another named Department in 2014, and other relevant background HR information relating to these decisions, on the basis that such information does not contain or consist of “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations
13 March 2024
1. This appeal concerns a request to the Department for information relating to the transfer of the appellant to a different office location of the Department, and also relating to the secondment of the appellant to another Department.
2. The appellant made reference to multiple geographic locations in the south of Ireland in his original request and in his subsequent correspondence with the Department and this Office. However, the appellant’s original request only concerns two specific transfers, one internally within the Department to a different geographic location in 2013 and one externally to another named Department in 2014. In this decision, the geographic locations of the appellant’s home and various workplaces, along with the name of the Department he was transferred to in 2014, have been anonymised in order to preserve the appellant’s privacy, as follows:
• town 1: the first transfer location mentioned in the appellant’s request.
• town 2: the appellant’s home.
• town 3: a third location the appellant referred to in correspondence subsequent to his original request – the named Department mentioned in his request appears to have offices in this location – for the purposes of this decision, any reference to a transfer to town 3 is to be read as the transfer to the named Department mentioned in the appellant’s request.
• town 4: the location of the appellant’s original workplace before the two transfers mentioned in his request.
3. On 20 May 2022, the appellant emailed the Department and stated he was making an AIE request seeking the following:
“As I was transferred to [town 1] in 2013 by the then Minister for Social Protection, I was obliged to travel by car to the new location every day. This gave rise to emissions being discharged into the environment as a result of the necessity to drive to [town 1] from [town 2]. Under the provisions of the AIE regulation I am seeking all records associated with my transfer on the basis that there were emissions created as a result of the travel.
I am also seeking all records relating to my transfer to the [named Department] on "Secondment" in 2014. This also gave rise to emissions into the environment as a result of having to drive to the location every day.
This is environmental information and is subject to disclosure under the regulations. This request relates to the actual emissions generated and therefore, I require the background documents and agreement that gave rise to these emissions being generated, as a result of the increased driving necessitated by the transfers. My request is supported by the recent High Court judgment The meaning of “ environmental information ” under the AIE Regulations | May - 2021 | A&L Goodbody (algoodbody.com) [Right to Know v. Commissioner for Environmental Information and Radio Teilifís Éireann [2021] IEHC 353 (RTÉ).]”
4. On 21 June 2022, the Department sent an email to the appellant in which it stated it was extending the timeframe for its original decision by one month.
5. On 15 July 2022, the Department issued its original decision and refused the appellant’s request on the basis that emissions information was not recorded in 2013 or 2014. The Department stated that until the publication of the Climate Action Plan 2021, there has been no requirement for the Department to record or report on carbon emissions and that the reporting requirement is from a baseline period of 2016-2018 only, to include emissions generated from business travel.
6. The Department stated that it also does not currently record such information. It said that, in accordance with the Climate Action Plan, all public bodies must report annual data on business travel to the Sustainable Energy Authority of Ireland (the SEAI) for the years 2021 onwards. The Department stated that under SEAI guidelines, business travel does not include travel to and from a person’s normal place of work, i.e., commuting.
7. It appears that, unintentionally, the Department provided the contact details of the AIE Unit of another government department when advising the appellant of his right to an internal review. On 15 July 2022, the appellant wrote to that other department seeking an internal review of his original request and copying the Department on the email. The appellant contended that the Department’s original decision “in no way” addressed his AIE request, which he stated concerned the actual decision to transfer him to [town 1] and [town 3]. This was the first occasion on which the appellant had made any reference to a transfer to town 3. The appellant stated that he had requested the documents that relate to that decision which, he said, gave rise to emissions into the environment. He also queried why the other department had access to such records.
8. On 18 July 2022, the Department emailed the appellant, apologised for the error, and confirmed receipt of his internal review request.
9. In a letter dated 29 July 2022, but emailed to the appellant on 2 August 2022, the Department made an internal review decision, in which it affirmed its original decision. The Department stated that having considered the relevant judgments of the High Court, including RTÉ, it did not consider that administrative decisions regarding the assignment of staff fall within the scope of the AIE Regulations.
10. The Department stated that civil servants are liable to transfer at the sole discretion of the Department, and contended that it could not realistically be suggested that every decision to reassign a civil servant to different duties could be characterised as either a measure or an activity that may have an effect on the environment. The Department went on to state that it had no information on the emissions produced by staff outside of work, including while travelling to their place of work.
11. The appellant appealed to my Office on 8 August 2022.
12. I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the correspondence between the parties and with the parties and this Office. I have also had regard to the submissions of the parties. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (‘the Minister’s Guidance’);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’);
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• the judgments of the Superior Courts in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ);
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB and RTÉ; 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).
13. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Preliminary scope issues
14. As set out above, the appellant’s original request concerned an internal transfer within the Department to town 1 in 2013, and to a transfer on secondment to another named Department in 2014, and other relevant background HR information related to these decisions. The appellant made no reference to town 3 in his original request, and it would appear he did so for the first time in his internal review request. It is unclear if the reference to town 3 is in fact a reference to the location of the named Department the appellant was transferred to on secondment in 2014. I note that it would appear the named Department has offices in town 3. Insofar as the appellant’s references to a transfer to town 3 actually mean the appellant’s transfer on secondment to the named Department in 2014, that transfer is clearly within the scope of this review.
15. In the same way, however, if in referring to town 3 the appellant is making reference to any other transfer, any such transfer to town 3 is outside the scope of his original request and consequently this review. For the sake of clarity, I have therefore decided to interpret the appellant’s references to a transfer to town 3 as references to the appellant’s transfer on secondment to the named Department in 2014, and any references I make to a transfer to town 3 in this decision should be read only in the same manner.
16. In his correspondence with this Office, the appellant took issue with the Department’s use of the term “carbon emissions”. The appellant argued that the Department had misquoted his original request, which had made no reference to “carbon emissions”, but rather simply used the term “emissions”. I note that this Office’s Investigator raised this issue in correspondence with the Department. For the avoidance of any doubt, I accept that the appellant did not use the term “carbon emissions” in his original request, and that, insofar as the scope of this review is concerned with emissions, such emissions are not limited to carbon emissions.
Whether the information sought is “environmental information”
17. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
18. As is standard practise by my Office, the Department was asked to address all relevant issues and provide all relevant information when it was invited to make submissions in support of its internal review decision. It was also asked to address specific queries concerning the basis on which it concluded that the information sought is not “environmental information”, and set out the information it held that was relevant to the request, along with the steps it took to search for and identify same.
19. The Department’s submissions to this Office were considerably lengthy and detailed and sought to address the matters raised in this Office’s request for submissions.
20. However, my powers as Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. It is clear from the Department’s submissions, along with its correspondence with the appellant and this Office, that it is the Department’s position that the information sought by the appellant is not “environmental information” such that it falls within the remit of the AIE Regulations.
21. In accordance with our Procedures Manual, available at www.ocei.ie our general practice in cases such as this, concerning a threshold jurisdictional issue, is to limit my review to the preliminary matter of whether the information sought is “environmental information” such that it falls within the remit of the AIE Regulations.
22. Accordingly, I am satisfied that the scope of this review is solely concerned with whether the Department was justified in refusing access to information concerning the appellant’s transfer internally within the Department to town 1 in 2013 and externally to another named Department in 2014, and other relevant background HR information relating to these decisions, on the basis that such information does not contain or consist of “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations.
23. It is clear from the comments of the Court of Appeal in Redmond, at paragraph 51, that the nature of a review by my Office is inquisitorial rather than adversarial in nature. The extent of the inquiry is determined by me and not the parties to the appeal.
24. In light of the guidance of the High Court in RTÉ, it is my view that I should decide on a case by case basis whether it is essential for me to review the entire content of the requested information before determining whether it is environmental information. In many cases, the content of the requested information will be highly relevant to the determination. This is one of the reasons why, in most cases, I require the public authority to make the requested information available to my Office for the purposes of my review. In other cases, the information requested will not itself be intrinsically environmental and the question will be whether the information requested is information ‘on’ a different measure or activity which is likely to affect the environment. In such cases, examination of the entire content of the requested information may be unnecessary. I am satisfied that this review falls into the latter category of cases and that I was able to carry out my review without reviewing the requested information.
Definition of Environmental Information
25. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with article 2(1) of the AIE Directive, article 3(1) of the AIE Regulations provides that "environmental information" means:
"any information in written, visual, aural, electronic or any other material form on –
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c). "
26. 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. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
Positions of the parties
The appellant’s appeal to this Office
27. In his appeal, received on 8 August 2022, the appellant sought a review by this Office on the basis of the Department’s refusal of his internal review request.
28. The appellant’s arguments included, but were not limited to, the following points.
29. The appellant stated that his request was for the information relating to his transfer to town 1 and town 3 and the decision-making process that led to these moves. The appellant contended that, due to these transfers, he had to make many journeys by private car, which led to emissions into the environment, within the meaning of the AIE Regulations. He argued that all emissions into the environment are governed by the AIE Regulations and there is no minimum threshold on the volume of emissions that must be achieved in order to make a request under the AIE Regulations.
30. As already mentioned, the appellant contended that the Department’s original decision did not address the substance of his request, and misquoted it, referring to "carbon emissions", although the appellant’s request referred to "emissions into the environment". The appellant contended that this was a deliberate misrepresentation of the request on the part of the Department, and argued that this deliberate misrepresentation was a cover for the “initial response”.
31. It seems to be the appellant’s position that while the internal review decision did make incomplete references to his request, it was nonetheless inadequate and failed to comply with the AIE Regulations. The appellant argued that the transfers at issue were outside of a discretionary facility available to the Department in the redeployment of staff and led to emissions into the environment within the meaning of the AIE Regulations.
Transfer to town 1 in 2013
32. The appellant contended that the Department’s decision to transfer him to town 1 in 2013 was outside of the Haddington Road Agreement specified distance of 45km and argued that this was at the discretion of the Minister. The appellant contended that the decision was therefore not within the normal “administrative decision” making policy of a Department regarding the assignment of staff. The appellant argued that the Department’s contention in its internal review decision that “[c]ivil servants are liable to transfer at the sole discretion of the Department” was correct only insofar as it applies to the contractual agreements in place at the time. The appellant contended that, under the Haddington Road Agreement, a distance limit of 45km was in place on the ability to transfer staff to a new location, and appeared to refer to point 15 of Appendix 4 of that agreement:
“15. Across all sectors the guideline redeployment distance will continue to be 45km from the current work location or of the home address, whichever is the shorter commute. Regard will also be had to reasonable daily commute time (i.e. as per the existing Public Service Agreement). In line with the Public Service Agreement, redeployment options may of necessity be beyond this guideline distance and in such circumstances, consultation will take place in relation to the assignment on offer.”
33. The appellant contended that because the distance to town 1 from either his base in town 4 (83km) or his home in town 2 (96km) both exceed the 45km discretionary redeployment distance, as provided for in the agreement, the Department’s position that the transfer decisions were discretionary in nature is “null and void.”
34. The appellant stated that he was transferred again in December 2013 to an office in town 2 on a permanent basis. For the sake of clarity, this transfer is not within the scope of the appellant’s original request nor this review.
Transfer on secondment to a named Department in 2014
35. The appellant said that he was seeking information concerning this secondment under the AIE Regulations as, he argued, it directly relates to the emissions into the environment, due to the travel required to the new location some 30Km each way five days per week. The appellant contended that a Department’s ability to redeploy staff within the 45km range referenced in the Haddington Road Agreement only applies to redeployment within (my emphasis) that same Department. The appellant argued that it was not a discretionary decision on the part of the Department as he was issued with a P45 form. In addition, the appellant stated that the Department’s internal review decision makes no reference to this secondment to the named Department.
36. The appellant provided this Office with a word document, created in August 2022, which ostensibly contains the text of a November 2014 letter from the Department to the appellant setting out details of his secondment to the other named Department, and requesting the appellant to sign the bottom of the document if he agrees to the secondment. The text of this apparent letter states that a final decision whether or not to make the position permanent will be made and this decision will rest solely with the other named Department. The appellant argued that this indicated that this secondment/transfer was not within the remit of the Minister for Social Protection.
37. Essentially, the appellant contended that the transfer decisions at issue resulted in emissions into the environment, and that these decisions are therefore covered by the AIE Regulations. He argued that the defence of “normal administrative” decision making is not relevant. The appellant argued that because these decisions were not within the normal or contractual parameters of the operation of the Civil Service, the Department could not argue that his request posed an excessive administrative burden.
38. The appellant argued that if a Department decided to transfer a large number of staff to a new location 80km away, such a decision would give rise to questions on environmental grounds if all of those staff members had to drive that distance to the new location. The appellant argued that the same logic should apply to the transfer of one staff member, contending that there is no threshold one must reach in order to be able to make a request under the AIE Regulations. The appellant referred to the judgment of the High Court in RTÉ, and argued that there was a direct and unbreakable link between the decisions to transfer him to different locations and the emissions into the environment.
The Department’s position
Initial correspondence
39. In its response of 5 September 2022 to this Office’s acceptance letter, the Department stated that while article 10(1) of the AIE Regulations provides that requests for environmental information relating to actual emissions into the environment shall not be refused, the information sought by the appellant is not and has not been held by or on behalf of the Department. It went on to say that it holds no information on the emissions produced by staff outside of work, including information on the emissions produced by staff while travelling to their place of work. The Department stated that it refused the appellant’s request on that basis.
40. The Department stated that it did not consider that administrative decisions regarding the assignment of staff fall within the scope of the AIE Regulations, and contended that environmental factors are not considered in assignment decisions nor referenced or noted in Department records.
The Department’s submission
41. This Office invited the Department to make submissions in support of its decision and to include in those submissions any information that it considered may be relevant to the review.
42. Amongst other things, the Department was specifically asked why it considered the information at issue is not environmental information, having regard to the national, EU and UK case law on the matter (including the legal cases referenced above), the definition of environmental information as set out in article 3(1) of the AIE Regulations, Directive 2003/4/EC (the AIE Directive) upon which the AIE Regulations are based, and various other sources of authority on the matter.
43. It is the Department’s position that the information sought by the appellant does not amount to information on the environment within the meaning of article 3 of the AIE Regulations.
44. The Department’s arguments most relevant to this review included, but were not limited to, the points below:
45. The Department suggested that the Commissioner should determine as part of this review whether:
“personnel records relating to the assignment or reassignment of an individual staff member to a different geographical workplace created or obtained in circumstances where it is acknowledged by the relevant public authority that no consideration was given to the matter of what emissions (if any) might be released into the environment by reason of the staff member having to make alternative arrangements of a personal nature as regards his travel during his own personal time from his place of residence to his new place(s) of work should—
• always, or
• never, or
• only to a limited extent be
regarded as “environmental information” within the meaning of art. 3(1) of the European Communities (Access to Information on the Environment) Regulations 2007, S.I. No. 133 of 2007 (“the 2007 Regulations”).”
46. Essentially, the Department argued that there should and must be a minimum threshold on the indirect or incidental nature and/or the volume of emissions required to make a request under the AIE Regulations. It contended that it cannot be correct that even the most minimal release of emissions into the environment, which are an incidental consequence of a personnel decision regarding the working location of one individual, would have the effect that all records concerning that personnel decision would become “environmental information”. It contended that this argument applies even more so when the emissions at issue are generated while traveling between the individual’s home and workplace, and not in the course of the individual’s employment at the new workplace location.
47. The Department referred to the ECJ’s judgment in Glawischnig, in which that court concluded that while the concept of “environmental information” is broad, there must be more than a minimal connection with the environment. It also quoted from a speech my predecessor in this role, former Commissioner Mr. Peter Tyndall, gave in October 2015, in which the former Commissioner summarised the import of that part of the judgment as follows:
“The Court held that AIE does not create a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors. Although the Glawischnig case predates the current AIE Directive; nevertheless, it lays down an important principle: AIE does not create an unlimited right to information.”
48. The Department argued that the connection between the emissions generated by the appellant on the one hand, and his transfers on the other, is tenuous and minimal.
49. The Department also argued that, having regard to typical settlement patterns and commuting norms in Ireland, it was fair to classify as exceedingly minimal the emissions generated by the appellant while travelling during his own personal time and in a manner of his own choosing to work at locations other than the Department’s town 2 office. However, the Department contended that it was not in its view necessary to quantify the emissions generated by the appellant as regards his commute to and from work.
50. Essentially, the Department argued that if there is no minimum threshold on the volume of emissions that must be achieved to make a request under the AIE Regulations then personnel records regarding an assignment or reassignment become environmental even if the assignment decision resulted in the staff member’s commute increasing by 100 metres.
51. The Department sought to contrast what it described as the personal nature of the emissions at issue in this review with emissions generated as a result of Department staff traveling as part of their duties. In doing so it outlined various examples of Department staff travelling from one location to another in the course of their duties, such as a Social Welfare Inspector travelling to the premises of a private sector business in order to inspect records held by that business in accordance with its obligations under the Social Welfare Act.
52. The Department argued that the records relating to such travel should be contrasted with records that “merely” have some indirect connection with travel of a personal nature incurred by a Department staff member to and from their place of work. The Department went on to argue that in various spheres of law and public policy, it is accepted that an employee’s travel between their place of residence and their workplace takes place outside of the employee’s contractual hours. In support of its position, the Department cited various areas of law, including:
• tax law – expenses in respect of employee travel to and from home and work are not wholly, exclusively and necessarily incurred by an office holder or employee in the performance of the duties of their office or employment;
• tort law – employers would not ordinarily be vicariously liable for injuries resulting from the negligent driving of his/her employees while the latter are travelling between their home and their workplaces;
• Organisation of Working Time Act 1997 – time spent travelling between home and work is not time which is reckonable under this legislation.
53. The Department argued that the personal nature of the emissions in this case is relevant in considering whether the information sought and the emissions at issue are sufficiently connected so as to create a disclosure obligation pursuant to the AIE Regulations. The Department referred again to Minimal Connection Test as identified in Glawischnig in arguing that the emissions and the information sought are not sufficiently connected.
54. The Department argued that there would be undesired consequences if the personnel information sought by the appellant is found to be environmental information because of a connection between the appellant’s emissions while travelling to and from work and the personnel information sought in his request. It contended that such a finding would make the personnel information of staff members, whose workplace location had changed, accessible to the world at large, if the staff member’s travel to that new workplace resulted in any emissions being released into the environment.
55. In making this argument, it appears the Department was referring to the fact that, under article 10(1) of the AIE Regulations, a public authority cannot rely on articles 8 and 9(1)(c) to refuse a request for environmental information where the request relates to information on emissions into the environment. Article 8(a)(i) is of particular relevance in the context of personnel information as it provides that a public authority shall not make available environmental information where disclosure would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information where that confidentiality is otherwise protected by law.
56. The Department strongly argued that such a finding would “ride roughshod” over the confidentiality that the law normally attaches to personnel records. It seems to me that the Department is of the view that if the information sought in the appellant’s request is found to be environmental information within the meaning of the AIE Regulations, that would undermine the stated purpose of AIE. In doing so it cited the first recital of the AIE Directive which reads:
“Increased public access to environmental information and the dissemination of such information contribute 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.”
57. Finally, the Department rejected the appellant’s arguments regarding the nature of the transfer decisions, and argued that in any event the nature of the transfers is irrelevant to the question of whether the underlying personnel records are environmental information. The Department went on to contend that any determination by this Office on the validity or otherwise of these personnel decisions would be outside my powers as Commissioner under the AIE Regulations.
The appellant’s response to the Department’s submissions and the Investigator’s view
58. Following receipt and consideration of the Department’s submission, this Office’s investigator wrote to the appellant to provide him with a summary of the Department’s submission. The investigator outlined that his preliminary view, having reviewed the Department’s submissions, was that the Department was justified in refusing the request on the basis that the information sought was not environmental information. The view of the investigator is not binding upon me in making my decision on this appeal, but I am satisfied that it was appropriate for him to outline this view to the appellant given the nature of the issues raised by this case.
59. The appellant was invited to make any further submissions on the matter he deemed relevant, and was specifically suggested to outline his views on the following questions:
• identify the measures or activities he considered relevant in this case as per the definition of environmental information provided for in article 3(1)(c),
• explain how and why he considered that such measures or activities would be “likely to affect” the elements and factors referred to in paragraphs (a) and (b) (i.e. the environment) within the meaning of paragraph (c), and why such an effect is a real and substantial possibility and not just a remote or theoretical possibility,
• explain how and why there is more than a mere connection or link to the environment.
60. The appellant provided a very detailed response to this Office by email, which I have fully considered. The main points made by the appellant were that he:
• disagreed with the Department’s position that the information sought was not environmental information and the Investigator’s agreement with that position,
• argued that the information at issue was clearly environmental information because it concerned emissions into the environment, citing paragraph (b) of the definition,
• disputed that the question before this Office was whether the information at issue was environmental information,
• argued that the ECJ’s findings in Glawischnig (that there must be more than a minimal connection with the environment for information to be environmental information) was irrelevant unless this Office found that exhaust emissions do not constitute emissions into the environment and that in any case that the ECJ’s finding in Glawischnig were irrelevant as they predated the current legislation,
• argued instead that the issue to be determined was whether or not there had been emissions into the environment, and strongly argued that there had been as a result of his travel to and from the relevant transfer locations,
• contended that once that it had been determined there had been emissions into the environment, the information sought in his request had to be released, citing article 10(1) of the AIE Regulations, which provides that a public authority cannot rely on articles 8 and 9(1)(c) to refuse a request for environmental information where the request relates to information on emissions into the environment,
• disputed the appropriateness of the Investigator forming a personal view on the matter, and in particular contended this Office should not engage in any assessment or consideration as to whether the Department’s decisions to transfer the appellant internally or to second the appellant to another Department, as part of its management of personnel matters, affected the environment,
• argued that this Office should not be concerned with or consider the nature of the information sought when deciding whether it is environmental information, and took exception to any description or characterisation of his request as concerning personnel or HR matters,
• argued that one (or possibly both) of the transfers were temporary, and that this distinguished the circumstances of his travel to and from work from the examples used by the Department, which he argued related to “normal” places of work,
• disputed the Department’s statement that it did not consider environmental factors in assignment decisions nor note such factors in its records,
• argued that he had received an email from the Department’s HR Division in June 2013 which referenced road infrastructure and travel distance, apparently in relation to one of the transfers at issue, and argued this proved that there were environmental considerations factored into the Department’s transfer decision, and
• contended that this Office’s Investigator had demonstrated bias in forming his a personal view on the matter, and that the Investigator had no role in forming such a view.
61. First it is necessary for me to consider the appellant’s arguments, and in particular the arguments the appellant made in response to the Department’s submissions to this Office, as summarised immediately above.
62. In brief, I consider that the appellant is incorrect in his framing of the scope of this review as a determination as to whether or not his travel to and from the relevant transfer locations may have given rise to emissions into the environment. It seems to me that in citing paragraph (b) of the definition of environmental information, which among other things provides “environmental information” means information on emissions into the environment, the appellant was attempting to characterise his request as concerning information on emissions. If I were to accept this characterisation of his request, it would indeed simply be a matter for me to establish whether or not emissions had taken place and, if I found that they had, to then find that the information sought is environmental information.
63. However, if I were to adopt the approach suggested by the appellant, I would be making a clear error in law and in fact, for at least two reasons. First, to put it simply, the appellant’s AIE request clearly does not concern information on emissions. Rather, it seeks information on the decisions or actions of the Department to transfer the appellant internally and then on secondment, including any relevant background information. In his request, the appellant contended that these decisions gave rise to emissions, and clearly sought information on these decisions on that basis. For this reason alone, it is clear that paragraph (b) of the definition is not relevant in this case.
64. Secondly, it does not appear to me that the Department has ever disputed that such emissions may have arisen from the appellant’s travel to and from those transfer locations, but rather that it does not hold any information on any such emissions in any event.
65. Accordingly, it is clear to me from the facts of this case that that question before me is whether the information sought by the appellant is environmental information within the meaning of the AIE Regulations and the AIE Directive, and not whether the emissions referenced in his AIE request actually took place or not. As set out above, while the appellant appeared to argue that paragraph (b) of the definition was the most relevant to this review, I am satisfied that that is not the case for the reasons outlined.
The appellant’s comments concerning the manner in which the Investigator/this Office progressed the review
66. Finally, I wish to make clear that I reject in their entirety the comments and or implications made by the appellant that this Office’s investigator, or this Office more generally, was biased in progressing this review to a conclusion, or progressed this review in an inappropriate manner or acted outside the remit or jurisdiction of this Office. As set out above, I consider that it was appropriate for the investigator to outline to the appellant that his preliminary view was that the information sought was not environmental information. The appellant’s response to this request for further submissions has been fully considered in my review of this appeal.
Definition of environmental information
67. In my view, paragraph (c) of the definition of environmental information provided for in the Regulations, which provides that “environmental information” means any information on measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements, is the only paragraph relevant to this review.
Identification of a measure or activity
68. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20, emphasis added), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
69. Both the appellant and the Department, in their correspondence to this Office, appear to agree that the appellant was transferred within the Department in 2013 and then transferred on secondment to the named Department in 2014, as I have set out in detail above. However, the parties disagree on how to characterise the nature of these transfers. I note in particular that the appellant characterised the decisions as government policy decisions in his response to this Office commenting on the Department’s submission.
70. Having considered the positions of the two parties on this point, I consider that the nature of the Department’s decisions/actions to transfer the appellant is not relevant to my determination as to whether the such decisions/actions are “measures” or activities within the meaning of paragraph (c).
71. It is clear from the facts of this case that, in making the decisions to transfer the appellant as referred to in the appellant’s AIE request, the Department was engaged in administrative activities (namely decisions concerning personnel matters) within the meaning of Mecklenburg. I am therefore satisfied that these transfer decisions are measures or activities within the meaning of paragraph (c). The appellant has not suggested that any other measure or activity should be considered in the context of this provision, nor can I find one.
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
72. To meet the definition at article 3(1) paragraph (c), the measure or activity must affect or be likely to affect the elements and factors referred to in paragraphs (a) and (b) (i.e. the environment) or designed to protect the environment (Redmond at paragraph 57). A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond at paragraph 63). It is also important to note that the actual outcome of a measure or activity is irrelevant. In this respect, I note the analysis of Hogan J in Minch at paragraph 40 of his judgment.
73. I have outlined the positions of the parties in considerable detail above. I have had regard to the decisions and submissions of the Department and the appellant’s correspondence with the Department and this Office.
74. In my view, there is no real and substantial possibility that the Department’s decisions to transfer the appellant internally or to second the appellant to another Department, as part of its management of personnel matters, affected the environment in the manner described in paragraph (c). I consider that the connection between the Department’s decisions to transfer the appellant and any consequent effect on the environment to be overly remote and at best minimal and tenuous. While I acknowledge that transfer decisions generally may involve changes to employees’ travel to and from their new workplace location, and that such travel may affect the environment in some form or another, and in particular through the release of emissions into the environment, this is the case for any staff member required to attend their workplace in person, regardless of whether or not they have been transferred to a new workplace location.
75. Indeed, it seems to me that if one were to follow the appellant’s arguments to their logical conclusion, all personnel information held by public authorities could be brought within the remit of the AIE Regulations as long as any link, no matter how minimal or tenuous, could be drawn between measures or activities concerning personnel matters (recruitment, induction, etc.), and an effect or effects on the elements and factors referred to in paragraphs (a) and (b) of article 3(1). Such an outcome would plainly expand the scope of AIE in a manner that would be in direct contradiction to the judgments of the national courts and the CJEU, which have clearly determined that the scope of the definition of environmental information is broad but not unlimited, as referenced above.
76. In all the circumstances, I am satisfied that the decisions of the Department to transfer the appellant to a different location within the Department in 2013, and to another named Department 2014, are too remote from any impact on the environment.
77. I find, therefore, that the decisions of the Department regarding the two transfers at issue in the appellant’s request are measures and/or activities but that they not likely to affect the environment.
Whether the information is on the measure or activity
78. Where the relevant measure or activity has the requisite environmental effect, one must consider whether the requested information is “on” that measure or activity within the meaning of article 3(1) of the AIE Regulations. In this case, having found that the relevant measures and/or activities – the decisions of the Department to transfer the appellant internally and externally – do not have the requisite environmental effect, it is not necessary for me to consider whether the requested information is “on” those measures or activities within the meaning of article 3(1) of the AIE Regulations.
79. I am also satisfied that due to the above, article 10(1) of the AIE Regulations is not relevant to this appeal. This provision states provides that a public authority cannot rely on articles 8 and 9(1)(c) to refuse a request for environmental information where the request relates to information on emissions into the environment. I am satisfied that this provision is only relevant in situations where it has been established that the information sought is a) environmental information and b) relates to emissions into the environment. As I have found that the information sought is not environmental information, article 10(1) has no application to this appeal.
Conclusion
80. In conclusion, I find that the information sought is not environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. I am also satisfied that the information sought is not environmental information within the meaning of any of the remaining paragraphs of the definition.
81. As noted above, in its submission the Department suggested that I should make a more general finding as to whether personnel records, requested in similar or identical circumstances as in this case, should always, never, or only to a limited extent, be regarded as environmental information within the meaning of article 3(1) of the AIE Regulations. Essentially, the Department would appear to be seeking for me to make a binding determination as to whether the information sought in this case and in these circumstances can ever, as a class of information, be environmental information.
82. However, reviews by my Office are de novo in nature. As already established by the courts, I am obliged to make decisions on a case by case basis, having regard to the particular circumstances of each case and various other factors, including but not limited to: the internal review decision of the public authority, the submissions of all relevant parties, the judgments of relevant national and EU courts, relevant legislation, and any other guidance or information I deem relevant. Accordingly, it would not be appropriate, nor do I have jurisdiction, to make any binding general finding or attempt to establish any precedential rule regarding requests for personnel information under the AIE Regulations.
83. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision on the basis that the information sought is not environmental information.
84. 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