Cinneadh
Mr X and Department of Agriculture, Food and the Marine
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-132879-J3K2Z3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-132879-J3K2Z3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing the appellant’s request for all information in relation to a contract awarded to undertake a training needs analysis on the basis that the information sought is not environmental information within the meaning of article 3(1) of the AIE Regulations
22 November 2024
1. On 4 October 2022, the appellant made the following request to the Department under the AIE Regulations:
“All information in relation to the contract awarded by the Forest Service of DAFM to a team comprising Auxilia Consultants, Forestry Services Ltd and Western Forestry Coop to undertake a training needs analysis (TNA) around the licencing process for afforestation, forest roads and tree felling and the application process for the Native Woodland Conservation Scheme (NWCS).
This includes methodology, consultation responses, reports, details of meetings, etc.”
2. On 19 October 2022, the Department issued its original decision, in which it refused the request, on the basis that the information sought is not environmental information “as defined by Article 3(1) of the AIE Regulations.” On 27 October 2022, the appellant sought an internal review of this decision, contending that “[t]he information relates to Forestry Programme. Deficiencies in the knowledge and skills of forestry practitioners can result in impacts on material elements of the environment. My request is looking for environmental information and falls within the scope of the Regulations.”
3. On 27 November 2022, the Department issued an internal review decision in which it affirmed the original decision. It re-stated the contents of the definition of environmental information at article 3(1) of the AIE Regulations and concluded with the contention that “[t]he awarding of a contract does not meet the above definitions.”
4. The appellant appealed to this Office on 5 December 2022.
5. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the FAC. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• the judgments of the Superior Courts in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ);
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB and RTÉ;
• the decisions of the Court of Justice of the European Union in C-279/12 Fish Legal and Shirley v Information Commissioner (Fish Legal); C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig), C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany (Flachglas); C-60/15 Saint-Gobain Glass Deutschland GmbH v European Commission (Saint Gobain) and C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg).
6. What follows may not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. In accordance with article 12(5) of the AIE Regulations, my role, on behalf of the Commissioner, 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 environmental information available to the appellant.
8. The Commissioner’s powers apply only in respect of environmental information held by or for a public authority. Where a public authority argues at the outset that the requested information is not environmental information, the general practice of this Office is to limit the review to the preliminary matter of whether the information at issue is “environmental information”, such that it falls within the remit of the AIE Regulations.
9. The Department’s position, at both original and internal review decision stages, was that the information sought by the appellant was not environmental information within the meaning of the AIE Regulations. From the language used in its internal review decision and its submission to this Office, it appears the Department may have interpreted the appellant’s request as being limited to the awarding of the contract to carry out a training needs analysis.
10. For the avoidance of any doubt, it is clear to me from the wording of the appellant’s request, and in particular the sentence: “[t]his includes methodology, consultation responses, reports, details of meetings, etc.”, that his request sought access to all information concerning the training needs analysis exercise, including the manner in which it was carried out, and not just information on the awarding of the contract by the Department to undertake the exercise.
11. Accordingly, the scope of this appeal concerns whether the Department was justified in refusing access to that information on the basis that such information/records containing such information does/do not comprise or contain “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations.
Whether the records are environmental information
12. 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);”
13. 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.
The appellant’s position
14. As noted above, the appellant argued in his internal review request that the information requested was environmental information on the basis that it “[…] relates to Forestry Programme. Deficiencies in the knowledge and skills of forestry practitioners can result in impacts on material elements of the environment.”
15. In his appeal to this Office, the appellant argued that the Department commissioned the training needs analysis to support the needs of an effective forestry licencing process and that forestry licencing comes under the Forestry Programme, which is a measure under article 3 of the AIE Regulations. The appellant contended that the training needs analysis had three main objectives, which he described with what appears to be a direct quote from the training needs analysis report itself:
“1. To review current training being provided and identify gaps in line with the forestry licensing process and the NWCS application process.
2. To make recommendations for required training provision to support the submission of quality applications relating to afforestation forest roads and felling licences and the NWCS.
3. To assess the need for awareness building of the forestry licensing system amongst the primary prescribed bodies, which may be consulted by the DAFM during the licensing process i.e. National Parks and Wildlife Service (NPWS), Inland Fisheries Ireland, An Taisce, Local Authorities and the National Monument Service.”
16. The appellant stated that, as part of the analysis, a questionnaire was circulated to registered foresters.
17. The appellant argued that “[d]eficiencies in the knowledge and skills of forestry practitioners can result in impacts on material elements of the environment. The methodology for the report, the consultation responses, reports, details of meetings, etc are all information related to this exercise and I contend that my request is quite clearly looking for environmental information and falls within the scope of the Regulations.”
The Department’s position
18. In submissions to this Office, the Department first addressed the appellant’s arguments as set out in the preceding paragraph of this decision. The Department argued that the purpose of the training needs analysis was not to ascertain the qualifications of foresters, who it described as professionals who are either self-employed or employed by forestry companies. Rather, the Department argued that the purpose of the training needs analysis was to streamline the process of licence applications. It contended that delays to that process could cause longer wait times for licences to be issued and this could cause financial hardship for licence applicants.
19. The Department quoted paragraphs (a)-(f) of the definition of environmental information at article 3(1) of the AIE Regulations, and went on to argue that “[t]he TNA and contract for such do not fall under those parameters and therefore were not issued at AIE or Internal Review stages.”
The records identified by the Department
20. The Department was asked to provide this Office with the records captured by the appellant’s request. By return, it furnished six records to this Office along with an accompanying schedule. The records identified by the Department consist of three separate records of minutes of meetings, the request for tender issued by the Department, the successful tenderer’s tender submission, and the actual training needs analysis report prepared by the successful tenderer.
Analysis
21. 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 and 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, more than one measure or activity or 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 measure with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB, paragraph 43).
22. Although the scope of what constitutes a “measure” or “activity” for the purposes of category (c) of the definition is limited, it is nonetheless wide. 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 public authorities, the term ‘measures’ serving merely to make it clear that the acts governed by the directive included all forms of administrative activity”. 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).
23. The training needs analysis report, which is publicly available on the gov.ie website, provides a brief background to the processes and issues that lead to its commissioning. The Department, according to the report, grants licences to landowners to carry out certain forestry activities: “afforestation, forest road works, tree felling and aerial fertilization”. The report states that there have been delays in issuing such licences and that Project Woodland was established in 2021 to implement the findings of the 2019 Mackinnon Report, which reviewed the licencing process.
24. The report notes that four stakeholder working groups were set up to implement the recommendations of the Mackinnon Report, and that Working Group 3 was tasked with carrying out a “focused training needs analysis” for forestry professionals, other professionals involved in licence applications, and forest owners who submit their own felling applications.
25. The report lists the three main objectives of the training needs analysis as follows:
“1. To review current training being provided and identify gaps in line with the forestry licensing process and the NWCS application process.
2. To make recommendations for required training provision to support the submission of quality applications relating to afforestation forest roads and felling licences and the NWCS.
3. To assess the need for awareness building of the forestry licensing system amongst the primary prescribed bodies, which may be consulted by the DAFM during the licensing process i.e. National Parks and Wildlife Service (NPWS), Inland Fisheries Ireland, An Taisce, Local Authorities and the National Monument Service.”
26. As noted above, in its submission to this Office the Department argued that the purpose of the training needs analysis was to streamline the process of licence applications, and that the training needs analysis and the contract for same do not fall under the parameters of any of the paragraphs of the definition of environmental information at article 3(1) of the AIE Regulations.
27. It is evident from the training needs analysis report itself that the Department’s forestry licencing function has been the subject of delays. The second objective of the training needs analysis is to make recommendations regarding training provision to support the submission of quality applications concerning afforestation, forest roads, felling licences and the NCWS (my emphasis).
28. I consider that the processing, approval or rejection of forestry licence applications by the Department (i.e. the forestry licencing process) is clearly the type of administrative activity envisaged by paragraph (c) of the definition on environmental information. The question in this review is whether the Department’s efforts and strategies, of which the training needs analysis forms part, to address the delays and other issues in the forestry licencing process, on foot of the Mackinnon Report and through Project Woodland, can be a measure or activity within the meaning of paragraph (c), specifically “plans” and/or “programmes”.
29. It is clear to me that in seeking to improve the quality of forestry licence applications, the Department is seeking to reduce the aforementioned delays in the process caused by poor quality applications. It is also clear to me that an improvement in the quality of forestry licence applications would have a consequent knock-on effect on the proportion of licence applications processed and approved by the Department. Plainly, any change in the efficiency of the Department’s forestry licencing process, and any change in the quality of the forestry licence applications within that process, will affect or is likely to affect the elements of the environment. This is because whether or not a license is granted, and how quickly or otherwise that decision is reached by the Department, determines whether and in what form the related forestry activity can take place. If the Department’s efforts and strategies are successful, a more efficient system dealing with higher quality applications is likely to increase the number of licencing decisions the Department can make and the proportion of those decisions that comprise approvals. In contrast, if the Department’s initiatives fail to have an impact, or indeed worsen the situation, it is likely it will make the same or fewer licensing decisions, and the proportion of those decisions that comprise refusals will either remain the same or actually increase.
30. Accordingly, I find that the Department’s plans and programmes to address delays and other issues in the forestry licencing process through Project Woodland, including by identifying the training needs of those persons applying for forestry licences and other relevant parties engaging with the process, is a measure and activity, specifically a plan and programme, within the meaning of article 3(1)(c) of the AIE Regulations.
31. The next question to consider is whether the information requested by the appellant is information “on” that measure. 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 the AIE Directive (paragraph 43; see also ESB, paragraph 42). Information that does not advance the purposes of the Aarhus Convention and the AIE Directive may not be “on” the relevant measure or activity (Redmond, paragraph 99). As the Court noted in Henney, the recitals of both the Aarhus Convention and the AIE Directive refer to the requirement that citizens have access to information to provide for a greater awareness of environmental matters, to enable more effective participation by the public in environmental decision-making and to facilitate the free exchange of views with the aim that all of this should lead, ultimately, to a better environment. Those recitals give an indication of how the very broad language of the text of the provisions of the Convention and the Directive may have to be assessed and provide a framework for determining the question of whether information is on a particular measure. 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).
32. In considering this question, it is worth recalling the wording of the appellant’s request. In this case, the information sought consists of:
“All information in relation to the contract awarded by the Forest Service of DAFM to a team comprising Auxilia Consultants, Forestry Services Ltd and Western Forestry Coop to undertake a training needs analysis (TNA) around the licencing process for afforestation, forest roads and tree felling and the application process for the Native Woodland Conservation Scheme (NWCS).
This includes methodology, consultation responses, reports, details of meetings, etc.”
33. As noted above, the Department have identified six records relevant to this request, which were provided to this Office and which I have reviewed in the course of carrying out this review. I consider that the records relate directly to the manner in which the training needs analysis was carried out, how relevant issues were identified, how conclusions were arrived at, and how recommendations were formulated, in other words, the substantive elements of the analysis. These matters have a direct bearing on the effectiveness of the training needs analysis, and also on any steps the Department may take on foot of the exercise. The training needs analysis exercise is not only itself part of the Department’s plans and programmes to address issues in the forestry licencing process, but also serves to identify, consider, and recommend additional actions the Department may take, actions which may over time become or inform future plans and programmes themselves.
34. I consider that the release of this information would enable the public to have a better understanding of the plans and programmes of the Department to improve the efficiency of its forestry licencing processes and would therefore advance the purposes of the Aarhus Convention. Having reviewed the information that the Department have identified as relevant to this request, I do not consider that the information sought is too remote from the relevant measure or activity to qualify as environmental information. Had it been the case that the information identified related solely to the logistical or administrative matters, my conclusion may have been different. I am therefore satisfied that it is information “on” the Department’s plans and programmes to address delays and other issues in the forestry licencing process within the meaning of paragraph 3(1) of the AIE Regulations.
Finding and Conclusion
35. I am therefore satisfied that the information sought is environmental information within the meaning of the AIE Regulations.
36. In light of the broad wording of the appellant’s request and the specific reference he made to particular categories of records, such as consultation responses, it is unclear to me whether the Department has in fact identified all information relevant to the appellant’s request. For instance, while the appellant stated that, as part of the training needs analysis exercise, a questionnaire was issued to registered foresters, no records of questionnaires, either blank or completed, appear to have been identified by the Department. I also note that, as referenced above, it seems that at least one of the records at issue, the training needs analysis report, is already in the public domain. For the avoidance of doubt, I would specify that this decision relates to the records identified by the Department at this stage as relevant to this request, but my comments above should be taken into account if the Department is considering whether any additional information comes within the scope of the definition of environmental information.
37. However, as set out above, this review is confined to determining whether the information at issue is “environmental information”, such that it falls within the remit of the AIE Regulations. Accordingly, the most appropriate course of action in this case is that I annul the Department’s decision and remit the matter so that a fresh internal review process may be carried out and so that the Department may consider whether any of the exemptions contained in articles 8 or 9 apply to the information sought. In making a new internal review decision, the Department should ensure that it has taken all reasonable steps to identify all relevant information captured by the appellant’s request. If the Department is unsure as to what information the appellant expected to receive on foot of the request, it should engage with the appellant directly to ascertain this.
38. Having carried out a review under article 12(5) of the AIE Regulations, I find that the information sought is environmental information. I therefore annul the Department’s decision and direct it to carry out a fresh internal review decision on that basis.
39. 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