Cinneadh
Dr. Fred Logue and Dublin Airport Authority
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147431-T4B6N7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-147431-T4B6N7
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
18 December 2024
1. On 28 December 2023, the appellant made the following request under the AIE Regulations to DAA:
(1) For each of the last three years, i.e. 2021, 2022 and 2023 please provide a list of AIE appeals to the Commissioner for Environmental Information against decisions of your organisation which were initiated in each of those years with the date of the appeal and the Commissioner’s case reference.
(2) For each appeal please indicate whether external legal practitioners were engaged.
(3) In each case where the answer to question (2) was yes please provide the name of the solicitors and/or counsel that were engaged.
(4) In each case where eternal legal counsel was engaged please provide the costs broken down as follows:
(i) Solicitors professional fee;
(ii) VAT;
(iii) counsel’s fees per counsel if more than one; and
(iv) itemised outlay
(5) For each of the three years listed in (1) please provide the total overall spend by your organisation on external legal advice relating to AIE requests, appeals and litigation.
We would like to get this information in Excel format.
2. As will be set out below in more detail, the appellant wanted this information to fully participate in a communication to the Aarhus Convention Compliance Committee (the ACCC).
3. DAA responded to the appellant’s request on 26 January 2024, informing him that “two cases fit the first question”, however that, in its opinion, the information requested is not “environmental information” within the meaning of article 3(1) of the AIE Regulations.
4. On 26 January 2024, the appellant submitted a request for internal review to DAA. In this correspondence, and supplementary correspondence on 2 February 2024, the appellant outlined his view that the Commissioner (for Environmental Information) had already determined that legal costs relating to environmental litigation, which would naturally include AIE appeals to the Commissioner is environmental information and he referenced cases OCE-100993-X1G6Q1 (Mr. Ken Foxe, Right to Know CLG and Coillte Teoranta (Coillte)) and OCE-136880-Q2N3W3 (FP Logue Solicitors c/o Dr Fred Logue and An Bord Pleanála).
5. On 22 February 2024, DAA provided the outcome of its internal review to the appellant, which upheld the original decision, and can be summarised as follows:
(i) DAA referred to the supporting case examples provided by the appellant. Regarding OCE-136880-Q2N3W3, DAA understands that it was determined in this case that the decision to initiate an appeal had the potential to impact the planning decision process, therefore could be considered to have been a measure and activity within the meaning of article 3(1)(c). Regarding OCE-100993-X1G6Q, DAA understands that the pertinent question here was whether legal proceedings initiated would affect or would be likely to affect the environment, thus satisfying the definition in article 3(1)(c).
(ii) DAA outlined, that having reviewed both DAA cases deemed in scope for the current request, it does not believe that the decision to initiate an appeal has the effect of impacting or delaying any decision defined as environmental information under the AIE Regulations.
6. The appellant brought an appeal to this Office on 16 March 2024.
7. On 4 April 2024, DAA was provided with a copy of the appellant’s statement of appeal and was requested to forward, within six (6) weeks or by 20 May 2024, both the subject matter information/records and a final submission in support of its decision in this case.
8. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, this Office will require the public authority to make available environmental information to the appellant.
9. The powers of the Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. It is clear from DAA’s internal review decision, along with it correspondence with this Office, that it is DAA’s position that the information sought by the appellant is not “environmental information” such that it falls outside the scope of the AIE Regulations.
10. In accordance with this Office’s Procedures Manual, available at www.ocei.ie our general practice in cases such as this, concerning a threshold jurisdictional issue, is to limit our review to the preliminary matter of whether the information sought is “environmental information” such that it falls within the scope of the AIE Regulations.
11. Accordingly, I am satisfied that it is appropriate to limit the scope of this review to whether DAA was justified in refusing access to the information requested by the appellant on the basis that it does not constitute “environmental information” within the definition provided at article 3(1) of the AIE Regulations.
Submissions of the parties
12. In his appeal dated 16 March 2024, which was received by this Office on 19 March 2024, the appellant submitted that the information requested was necessary for his client’s communication to the ACCC in relation to the prohibitive costs of appeals (case ACCC/C/2023/199). The appellant made further submissions to this Office on 5 April 2024 in support of his appeal, which are summarised below.
13. The appellant submitted that Article 9(4) of the Aarhus Convention requires that the procedures for access to justice under Article 9(1) must not be prohibitively expensive. He submitted that, for AIE matters, there are several instances of access to justice under the first paragraph of Article 9(1) starting with the Commissioner for Environmental Information whose decisions are further capable of being appealed to the High Court on a point of law.
14. The appellant submitted that the costs of appeals to the Courts are subject to special provision in Sections 3 and 5 of the Environment (Miscellaneous Provisions) Act 2011 which alters the normal “loser pays” rule in litigation to “one-way cost shifting” for AIE appeals, whereby the requestor is not exposed to adverse costs if they lose but is entitled to recover costs if they win, submitting that the Irish Courts have ruled (e.g. Heather Hill) that these special costs rules give effect to Ireland’s obligations under the Aarhus Convention.
15. The appellant submitted that there are no similar provisions, or indeed any provisions, relating to the costs of appeals to this Office. The appellant further submitted that he is advising his client (Right to Know CLG) on a communication to the ACCC alleging that Ireland has not complied with Article 9(4) since it has not implemented any measures to ensure that the costs of appeals to this Office are not prohibitively expensive. The appellant submitted that this AIE request is part of the research that he is undertaking in order to establish the actual costs of appeals to this Office so that they can be presented to the ACCC so as to inform it about typical costs incurred by parties to appeals to this Office. He made similar requests to a number of public authorities as part of this research.
16. The appellant referred to the definition of “environmental information” in Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ). He submitted that the required analysis is fact specific and a purposive approach to interpretation should be used having regard to the objectives of the Aarhus Convention and the AIE Directive, particularly in marginal cases. The appellant submitted that “DAA rejected the request on the basis that the link between the information and impacts on the environment was, in essence too remote”. He submits that “DAA misinterpreted the AIE Regulations and did not use the correct legal test for environmental information … The question of whether information is on a measure is one of whether it is about, relates to or concerns that measure. It does not necessarily depend on a connection between the information and environmental impacts.”
17. The appellant submitted that this Office has already held, in cases CEI/12/0008 (Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht) and OCE-93406-G5Y0Y0 (Right to Know CLG and Department of Communications, Climate Action and the Environment), that the AIE Regulations come within the concept of measures designed to protect the environment and therefore are within category (c). He further submitted that per the decision in Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2) this Office ought to follow its earlier decisions unless there is good reason not to.
18. The appellant argued that, in the current case, information on the legal costs incurred in appeals is clearly integral to this measure. He submitted that the issue of costs and financial barriers to the exercise of environmental rights is an important aspect of the Aarhus Convention and occurs in a number of areas as follows:
a. Article 4(8) tightly controls charges for supplying environmental information.
b. Article 5(2)(c) prohibits charges for accessing publicly available lists, registers or files.
c. Article 6(6) requires access to the information needed for public participation to be free of charge.
d. Article 9(1), second paragraph, requires an AIE reconsideration procedure that is free of charge or inexpensive (note: this correlates to internal review).
e. Article 9(4) requires that the procedures under Articles 9(1) to (3) are not prohibitively expensive.
f. Article 9(5) requires consideration of appropriate assistance mechanisms to remove or reduce financial or other barriers to access to justice.
19. The appellant submitted that it is clear that the cost of AIE appeals is information that is quite central to the overall Aarhus Convention and in particular to AIE and access to justice.
20. The appellant submitted that this Office has already held, in cases OCE-100993-X1G6Q1 and OCE-136880-Q2N3W3, that legal costs are capable of being environmental information. He submitted that there is no material difference between the current case and these earlier cases to distinguish them, such that the current request is not environmental information. The appellant argued that the logic in these cases doesn’t mean that legal costs are environmental information only because the legal action causes delay.
21. DAA provided submissions to this Office on 20 May 2024, which are summarised below. It also provided an excel sheet purported to contain the information requested by the appellant, for the purposes of this review.
22. DAA submitted that it had interpreted part (1) of the appellant’s request “as appeals that were initiated with OCEI on years 2021, 2022 and 2023” and, as such, it identified two (2) cases as fitting this question. It also submitted that, “the AIE regulations do not, by themselves, constitute environmental information… Instead, they refer to the access of environmental information that is already in the possession of our business”.
23. DAA referred to the supporting case examples provided by the appellant in his request for internal review (OCE-136880-Q2N3W3 and OCE-100993-X1G6Q).
24. Regarding OCE-136880-Q2N3W3, DAA submitted that it is the appellant’s understanding that, in this case, the Commissioner held that legal costs relating to environmental litigation is environmental information. However, DAA submitted that the information at issue here was found be “environmental information” because it is referred to legal costs on appeals of planning permissions. DAA submitted: “Planning permissions do affect the environment, and factors affecting the environment – so it does fit on the “environmental information” definition from the AIE [R]egulations.”
25. Regarding OCE-100993-X1G6Q, DAA submitted that the information at issue in this case concerned whether the amount spent in the High Court by Coillte in case CEI/17/0022 was environmental information. DAA submitted that case CEI/17/0022 was on the issue of whether the identities of purchasers of land from Coillte amounted to environmental information. It submitted that this Office ruled in favour of the applicant finding that the information was environmental information, which was appealed to the High Court by Coillte, and the applicant then requested the amount of legal costs spent by Coillte on this specific case.
26. DAA submitted that this Office had ruled that legal costs pertaining to case CEI/17/0022 could be environmental information as per point 41 of the decision –
“However, this does not mean the legal proceedings themselves were not likely to affect the environment. I consider this to be the case for the following reasons:
The decision to initiate the proceedings led to a delay in the processing of the applicant’s AIE request for information in relation to the identity of purchasers of land held by Coillte (which was subsequently accepted as being “environmental information”). Again, I must reiterate that the AIE Regulations provide for this process. However, it should be noted that the underlying ethos of the AIE regime, as outlined in Recital 1 of the AIE Directive, is that “increased public access to environmental information … contribute[s] to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment”.In my view, therefore, it should be recognised that a delay in reaching a decision on the disclosure of environmental information by Coillte gives rise to more than a remote or theoretical possibility that elements and factors of the environment referred to in articles 3(1)(a) and 3(1)(b).” (Emphasis added)
27. DAA submitted: “To conclude, legal costs related to environmental information are in fact deemed of being requested. [DAA does] not believe that the AIE regulations itself, or legal costs involving OCEI appeals it is environmental information per se, but a means to access environmental information”. DAA submitted that the two cases provided by the applicant are very specific and can be interpreted as environmental information. However, it argued that the request made to DAA, subject to this appeal, is not connected to a particular case and in its opinion, “it is not environmental information just because the request come through an AIE”.
28. On 12 September 2024, the investigator assigned to this case wrote to DAA and provided a summary of the appellant’s submissions to this Office dated 5 April 2024. DAA was provided with an opportunity to include any further information that it considered may be relevant to the Commissioner’s review, including if it wished to make any comments in response to the content of the appellant’s submissions to this Office. The investigator also proffered her preliminary view, that the implementation of the AIE Regulations by DAA could be considered a measure within the meaning of article 3(1)(c) of the AIE Regulations, in cognisance of the finding in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), including that "likely to affect" the environment should really be understood in the sense of being "capable of affecting” the environment.
29. On 24 October 2024, DAA provided further submissions to this Office, as summarised below.
30. In relation to part (1) of the appellant’s request, DAA submitted that this is information that is publicly available on this Office’s website here, and “therefore, to the extent that the Commissioner finds that the information sought is indeed environmental information, Article 7(3)(a) of the Regulations is applicable”.
31. DAA submitted that legal costs of AIE appeals to this Office do not fall within the definition of “environmental information” contained in the AIE Regulations. DAA noted that while there are some previous decisions of the Commissioner granting release of similar information, it submitted that those decisions are distinguishable and that there are several decisions that support the position that the information sought is too remote to be considered “environmental information”, as set out below.
32. DAA noted the investigator’s reference to the court’s finding in Minch. DAA submitted that in the Minch case, the Court of Appeal was asked to consider whether a report prepared by the government to achieve the objectives of National Broadband Plan was “environmental information” under the Regulations. It submitted that part of the Court’s analysis was to consider when a “measure” or “activity” is “likely to affect” the environment and referenced paragraph 40 of the judgment –
“This does not mean, however, that the Commissioner is required to make a judgment as to whether the plan or policy is ever likely to be put into effect and in that sense is or is not likely to affect the environment. If, for example, the Minister had prepared a plan to build four new motorways, it would matter not that by the time the matter came to the Commissioner the economy had weakened and the funding for this project was no longer to hand. The Commissioner would not be entitled in those circumstances to conclude, for example, that these plans were not likely to affect the environment because the roads in question were now unlikely to be constructed. In that sense, as the French text of Article 3(1)(c) of the 2003 Directive makes clear, thereference to “likely to affect” the environment should really be understood in the sense of being “capable” of affecting the environment…” (Emphasis added)
33. DAA submitted that in arriving at its conclusion, the Court looked “objectively” at the “measure” (being the plan) concluding that it could “affect” or “likely to affect” the environment because it [the plan] –
“[D]iscussed a _variety of options each of which would have significant environmental
impacts_, whether it be the road openings for fibre or the installation of 2,000 new
installations to facilitate the delivery of wireless technology. The plan further envisaged
specific measures with regard to the planning process and the development of
telecommunications infrastructure. None of these proposed actions can, with respect,
be dismissed asremote or incidental. ” (paragraph 49; Emphasis added)
34. DAA submitted that in the case of Redmond v. Commissioner for Environmental Information [2020] IECA 83 (Redmond), the concept of “capability” was developed further, as follows, at paragraph 63 of this judgment –
“Drawing together these statements, it appears to me that, for the purposes of paragraph (c), a measure or activity is “likely to affect” the environment if there is areal and substantial possibility that it will affect the environment, whether directly or indirectly. Something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the “general and unlimited right of access” that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive).” (Emphasis added)
35. DAA submitted that for the legal costs associated with AIE appeals to be “capable” of affecting the environment there must be a “real and substantial possibility” that they “will” affect the environment. DAA argued that, unlike in Minch, the information sought in this instance does not contain any discussion or insight that would any impact on the environment. It submitted that the information relates to DAA’s procurement of additional legal resources, constituting names of legal professionals (including law firms and barristers), their charge-out rates, and invoiced amounts of those legal professionals. DAA submitted: “Even if it is accepted (which it is not) that overall figures constituted measures likely or capable of affecting the environment, [DAA] submit that the nature of the information which the appellant is seeking, on any plain analysis, has no “real” or “substantial possibility” of affecting the environment.”
36. DAA submitted that, “if there could be any affects on the environment as a result of a measure or activity comprising legal costs, it could only be where there is a real possibility that the steps taken as a result of the legal advice (assuming that the legal advice is followed) will affect the environment, whether directly or indirectly”. In addition, it submitted that, “legal costs can only affect the environment when the legal services themselves are capable of affecting the environment”. DAA argued that when those legal services concern appeals to the Commissioner on the correctness to allow access to environmental information, the legal services provided only has a “remote or theoretical possibility” of affecting the environment and is therefore incapable of meeting the “real and substantial possibility” threshold requirement set out by the Court of Appeal in Redmond. DAA submitted, for this reason, it is its view, that the appellant’s reliance on the earlier decisions by the Commissioner in OCE-136880-Q2N3W3 and OCE-100993-X1G6Q to say that legal costs relating to environmental litigation is environmental information for the purposes of article 3(1)(c), is misconceived. DAA submitted that those cases are distinguishable from the current case and facts because they concern planning permissions and identities of purchasers of land. It argued that the legal services used in those cases related to an environmental factor, whereas, here the legal services relate to advice on access to environmental information.
37. DAA submitted that the purpose of paragraph (c) of article 3(1) of the AIE Regulations is to give access to information on the “measure” or “activity” in question; however, it is only when that measure or activity “affects” or is “likely to affect” the environment that the public is entitled to information “on” it. DAA argued that even if legal costs incurred by public authorities in relation to the application of AIE, more specifically, on the interpretation of an aspect of the Regulations, the AIE appeals themselves could not objectively be found to be capable of affecting the environment. It submitted: “This is because the appeals relate to the correctness of the decisions to release or refuse access to environmental information and not the environmental information itself. Furthermore, appeal proceedings do not change the law, they simply interpret it and hence, cannot be said to affect the environment.” DAA further submitted that that any other conclusion would be contrary to what Collin J’s cautioned against in Redmond, resulting in a definition of “environmental information” that would "sweep too widely and could result in the ‘general and unlimited right of access’ that Glawischnig indicates the AIE Directive was not intended to provide".
38. DAA submitted that recent case law developments, as outlined below, in its view, provide further sufficient bases for determining that the requested information does not constitute environmental information.
39. DAA submitted that in ESB No. 2, Heslin J, noted the decision of the CJEU in Case-470/19 Friends of the Irish Environment v Commissioner for Environmental Information (Friends of the Irish Environment) (at paras. 36 and 37) as follows:
“[36] …As is clear from Recital 1 and Article 1 of that Directive, the purpose of the Directive is to promote increased public access to environmental information and more effective participation by the public in environmental decision-making, with the aim of making better decisions and applying them more effectively, and ultimately, promoting a better environment.
[37] Thus, while the implementation of that objective means that the administrative authorities must give public access to environmental information in their possession, in order to give an account of the decisions they take in that field and to connect citizens with the adoption of those decisions, the same is not true of pleadings and other documents adduced in court proceedings on environmental matters,since the EU legislature did not intend to promote public information in judicial matters and public involvement in decision-making in that area.” (Emphasis added)
40. DAA submitted that “the Court [in ESB No. 2] proceeded to apply this logic to the task before the arbitrator, and queried whether information about a quasi-judicial compensation process (concerning arguments, and not any determination, or the basis for same, about compensation payable to a particular landowner) could come within the definition of environmental information. It pointed to the fact that there was no role for public participation in the compensation process”, pointing to the following excerpt from para. 130:
“[i]f, as Friends makes clear, the Directive is not intended to capture documents adduced in court proceedings on an environmental measure, it seems to me that the principle must apply with equal force to the process by which the quantum of compensation is determined (being a process which is at a further remove from the measure).”
41. DAA submitted that when the above aspect of Friends of the Irish Environment and its application by Heslin J in ESB No. 2 is applied to the current appeal and its facts, “it would seem to apply with equal or, indeed, even greater force”. It argued that, “if substantive information on proceedings on environmental matters, such as that which would be contained in “pleadings and other documents adduced” in such proceedings… is not within the purview of the AIE Regulations, this must equally, or even more so, be the case regarding information comprising merely the amounts expended by a party on external legal fees in quasi-judicial and judicial proceedings (as in the instant case)”.
42. DAA submitted: “This position is further underpinned by the fact that, unlike [Friends of the Irish Environment], the AIE Appeals are not “on an environmental measure” but are on the true interpretation and application of the Regulations as respects certain information, which information might then transpire to be determined to be (or not be) information on an environmental measure, Thus, the AIE Appeals are at least a step removed from being “on an environmental measure”.”
43. DAA submitted that in ESB No. 2, the Court considered that the above reasoning applied not only to a judicial process, but also to a quasi-judicial one. DAA therefore submitted that, as such, it would apply to the costs information concerning the AIE appeals.
44. DAA referenced the decision in case OCE-139193-Z4J9X2 (Ms. A and Coillte), issued by this Office on 26 March 2024. It submitted that the request in that case sought access to information on the number of key management personnel who benefit from bonus schemes and information on how the bonus schemes are structured to include information on all targets that formed part of any bonus scheme. DAA noted where the decision found that categorising “the planning, directing and controlling the activities of Coillte” as “an activity affecting or likely to affect elements of the environment” to be too broad and all-encompassing and that to adopt such an approach would lead to the definition of environmental information being expanded in a manner that is contrary to the judgments of the Irish Courts and CJEU. DAA also noted wherein it was stated that the actual outcome of a measure or activity is irrelevant. It submitted that the appellant here, in her submission, had argued that the information was necessary to assess whether a tension or conflict existed between what is best for the individuals’ financial position and what may be best for the environment. DAA noted that in this case, the Commissioner found that “the connection between the operation of a bonus scheme by Coillte, and any consequent effect on the environment to be overly remote and at best minimal and tenuous” and “no more than a hypothetical possibility”.
45. DAA submitted that “the correct “measure” or “activity” referred to in the [request in the current case] is on [DAA]’s procurement of legal services”. It argued that the sort of information sought is not information “on” the AIE appeals. It submitted: “For example, it does not ask for documents or information produced for the appeal, nor does it seek anything that was provided at the appeal. Rather, the information sought relates to [DAA]’s engagement with external legal services in respect of AIE matters.” It submitted that the costs incurred by DAA in procuring legal services is not “on” the AIE appeals and argued that what DAA expended money was on was legal services to supplement its own existing in-house legal and other resources and capabilities in respect of its interpretation of the Regulations. DAA submitted: “The information… is better understood as information relating to the retention by [DAA] of external legal advisers, and the obtaining by it of additional legal services to complement its own in-house legal resources and capabilities, in the context of the respective appeals: essentially, it was information on the procuring of legal services.”
46. DAA submitted that characterising the information in the above way is not only a more precise identification of the “measure” or “activity” that the costs information relates to, it submitted that it also aligns with the approach adopted by this Office in OCE-139193-Z4J9X2. It further submitted that if the “measure” or “activity” is on DAA’s procuring legal services, that there is no reasonable way for the information about the procurement to relate to the environment.
47. DAA referenced the UK Upper Tribunal in DfT, DVSA and Porsche Cars GB Limited v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC) (Porsche). It submitted that in that case, the Upper Tribunal overturned a 2015 decision of a Lower Tribunal which had concluded that information regarding a vehicle safety test, which addressed the safety of the vehicle’s throttle characteristic was environmental information. DAA submitted:
“The Upper Tribunal found that the safety test was a “measure”, and the requested information was "on" the safety test. However, the fact that the test involved running an engine, thereby causing emissions, did not of itself mean that the safety test affected environmental elements within the meaning of paragraph (c) of the definition of “environmental information”. The Upper Tribunal found that the Lower Tribunal’s reasoning confused or conflated the steps involved in carrying out an activity with the activity itself. It said that although running a car engine was a necessary element of carrying out the safety test, that did not of itself mean that, on a purposive approach to the Regulations, the test affected environmental elements or factors.
The Upper Tribunal referred to the principles established in Henney and Glawischnig to the effect that information which has only a minimal connection with the environment is not environmental information. The Upper Tribunal found that this principle must apply, not only in deciding whether information is on an environmental matter but whether a measure or activity has the requisite environmental effect.”
48. DAA submitted: “The Upper Tribunal’s decision in Porsche, even if (which is not accepted) the relevant measure in this case is the defending of an appeal before the Commissioner, the fact that it is a collateral aspect of appeal and that a greater period of time will elapse before a requester is provided with what transpires to be confirmed as environmental information, does not determine the true and essential nature of the measure, and its capability to affect the environment within the meaning of paragraph (c) of the definition of “environmental information” in the Regulations.” It also submitted: “The reasoning that a measure or activity which merely seeks to determine the definitive meaning and effect of the Regulations, and whether they dictate, on a particular reading that a particular piece of information is in, or out of, scope, is a measure or activity that has the requisite capability to affect the elements and factors of the environment, confuses and conflates a possible incident of engaging in proceedings (passage of time or “delay”), and the measure or activity itself.”
49. DAA submitted that AIE appeals cannot be considered to “affect” or be “likely to affect” the environment because the nature of such proceedings is not to create new law, but rather, to apply existing law that has been enacted by the Oireachtas, or in this instance, by the EU Institutions. It submitted that the Court, or in this instance the Commissioner, simply, interprets the law. DAA argued therefore, that it is incorrect to say that AIE Appeals affect the environment because they in some way “change” what information is available under the Regulations. It submitted: “The better view is that the AIE Appeals set out to discover the truest interpretation of what information is available under the Regulations as enacted. Whether the effect of the AIE Appeals “narrows” or “expands” what information was previously given under the “now incorrect” interpretation of the Regulations is immaterial and cannot be said to affect the environment.”
50. DAA submitted that a “measure” or “activity” under the AIE Regulations does not include appeal proceedings. It submitted that there is limited guidance on what constitutes a “measure” or “activity” in the Aarhus Guide, but it rejects that things can be “labelled” as “environmental”:
“Most importantly, the activities or measuresdo not need to be a part of some category of decision-making labelled “environmental”. The test is whether the activities or measures may have an effect on the environment.” (Aarhus Guide, p.54; Emphasis added)
51. DAA submitted that, while information not labelled as “environmental” can be caught under the meaning of “measure” or “activity” under the Regulations, so too can, information labelled as “environmental information” fall outside of the meaning. It argued that, put simply, the fact that AIE appeals concern the correctness of the decision to grant or refuse access to environmental information is not conclusively that they are, in of themselves, “environmental information”.
52. DAA submitted that the AIE Regulations make a clear delineation between administrative, legislative and judicial functions. It submitted, for example, “public authority” is said to expressly exclude “any body when acting in a judicial or legislative capacity”, which it argued also finds support in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), as follows:
"The term 'measure' employed by the Community legislature reflects the need to include within the acts governed by the Directive even the most diverse forms in which administrative activity is carried on. However, this does not mean that, as the defendant erroneously maintains,a 'measure' in the sense intended by the Community legislature corresponds solely to acts which may have an impact upon particular legal situations by regulating their effects.
On close inspection, it can be seen that the Directive is not solely concerned with administrative measures in a technical sense, against which it is possible to bring a legal action or raise other forms of claim in accordance with the procedures prescribed by law. On the contrary,the 'measure' to which the Directive refers must here be given its true meaning, that is, the result of administrative action lacking in specified characteristics.” (Opinion of Advocate General in Mecklenburg, paragraph 15; Emphasis added)
53. DAA submitted that, in its view, the above gives support to the proposition that matters considered pursuant to article 12 of the AIE Regulations, are not a measure or activity to which article 3(1)(c) of the Regulations applies.
54. DAA also referenced Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) and submitted that the information sought by the applicant does not pass the test outlined in Henney, as it does not address key issues such as:
• what is the “purpose” of the information on legal costs expenditure;
• why that information was “produced”;
• how important the information on legal costs expenditure was to that “purpose”; and
• how the legal costs information was to be “used”
55. DAA submitted that the information comprising raw cost-figures does not come within the notion of what the Court of Appeal in Henney had in mind when it used these expressions and promulgated its test. It argued that, both generally and looking at the information actually at issue in that case, it is clear that the Court of Appeal had in mind substantive information relating to something that was integral or critical to the success of a measure or activity in a substantive sense. It submitted that in Henney for example, the Court considered that information in a Project Assessment Review about the communications and data component of the United Kingdom Government’s Smart Meter Programme did pass the test and was “environmental information”.
56. DAA submitted that, in the current case and facts, the procurement and obtaining of external legal services in addition to its own, in-house legal and other resources, was not, as a matter of fact, integral or critical to the success of the proceedings concerned. DAA argued that it could have engaged in the requests and subsequent appeals without such additional resources, but chose to complement its own legal and other resources in that regard. In addition, it submitted that even if that extra legal input might, in a substantive sense, be regarded as integral or critical to the outcome of those cases, what the appellant has requested is not substantive information relating to, or comprising, that input, but mere, raw, cost figures, which are yet more removed from what might, at its height, be considered integral or critical to the success of, the appeals.
57. In addition, DAA submitted that, even if the costs information was integral or critical, that is by no means an end of the matter, and the Henney test cited with approval and applied by the Irish Superior Courts, emphasises the overarching importance of applying a purposive test to “draw the line between information that qualifies and information that does not”. DAA argued that what we are concerned with here is the amount of money spent by DAA on external legal services to assist it in respect of appeals before the Commissioner, aimed at ensuring the correct interpretation and application of the Regulations to the information requested, and releasing only whatever information (if any) that was truly, correctly and definitively required to be provided, in light of the conclusion of that exercise.
58. DAA submitted: “The information requested is not substantive information concerning the proceedings before the Commissioner or anything associated with those proceedings, save for mere, raw, legal cost figures (which are also unaccompanied by any commentary or analysis which might perhaps serve to elevate the raw figures into becoming more ‘informative’ of anything).”
59. I am directed by the Commissioner 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 by DAA. In addition, I have had regard to:
• the judgments in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB No. 1), Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ) and Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2);
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB No. 1, RTÉ and ESB No. 2;
• the decision of the UK Upper Tribunal in Department for Transport, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC) (Porsche);
• the decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig) and C-470/19 Friends of the Irish Environment Ltd v Commissioner for Environmental Information (Friends of the Irish Environment);
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
60. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Definition of “environmental information”
61. 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)”
62. According to national and EU case, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB No. 1 at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU. However, the right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition.
Identification of a measure or activity
63. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB No. 1 at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
64. The appellant contends that the relevant measure in this case is the AIE Regulations. He also notes that this Office has already held in previous cases, including CEI/12/0008 and OCE-93406-G5Y0Y0, that the AIE Regulations come within the concept of measures designed to protect the environment and therefore are within category (c). DAA argues that neither the AIE Regulations or legal costs involving appeals to the Commissioner for Environmental Information is “environmental information” as defined at article 3(1)(c). DAA submits that the correct measure or activity is “on [DAA]’s procurement of legal services”.
65. In my view, the relevant measure is the implementation of the AIE Regulations by DAA. This is the case in respect of all parts of the appellant’s AIE request, which I view as interrelated. Furthermore, I note the findings in Minch which included that "likely to affect" the environment in paragraph (c) should really be understood in the sense of being "capable of affecting” the environment. In this context, I consider that information concerning the manner in which a public body such as DAA implements this legislation, could be considered capable of impacting on public participatory activities; participation which advances the purposes of the Aarhus Convention and the Directive. I will elaborate on my considerations below.
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
66. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that “something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the “general and unlimited right of access” that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive)” (paragraph 63).
67. The spirit and intent of the AIE process, as outlined in Recital 1 of the AIE Directive, is that “increased public access to environmental information … contribute[s] to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment”. The AIE Regulations and perhaps more so, the manner in which the Regulations are implemented by public bodies such as DAA, determines the extent to which this intent is advanced. Therefore, it is clear to me that there is a real or substantial possibility this measure can be said to have, at least, an indirect effect on the environment.
68. According to its website, DAA states that its “principal activities include operating and managing Dublin and Cork airports, global airport retailing through [its] subsidiary Aer Rianta International, and international aviation consultancy through daa International”.
69. The Environmental Sustainability section of DAA’s website states: “Climate change is the greatest challenge of our time. As part of the broader aviation industry, daa recognises the role that we must play in addressing this issue and we are taking action now. As well as working to move the needle on international sustainability targets, we are playing our part to ensure that Ireland can reach the necessary climate, carbon and energy goals as set out in the national Climate Action Plan.” It goes on to set out the driving principles which underpin its climate and sustainability goals, which I have summarised below:
• Decarbonisation – DAA states that it is committed to achieving net zero emissions by 2050 across its group operations by accelerating the path to Net Zero Carbon Emissions by reducing emissions on the ground and in the air. DAA outlines that it is phasing out the use of fossil fuel for energy, replacing these with renewable energy sources, including green electricity, solar energy and biofuels.
• Circularity – DAA states that it is committed to achieving zero waste operations by moving from pure waste management to circular principles. DAA outlines that it is working to reduce waste at the source, while increasing the levels of recycling and composting in its operations.
• Healthy Local Environment – DAA states that it understands the importance of, and is committed to, creating healthy local environments for the benefit of its staff, passengers and local communities, focussing on air quality, water, noise, biodiversity and positive local engagement. DAA outlines that it is committed to the responsible management of its operations and campuses to minimise its impact on local ecosystems and support preventing pollution, including by the installation of air and water monitoring systems in our airports and local areas.
70. I note also the DAA actively disseminates environmental information through its website and that it provides links to the most popular searches as follows:
• Airport Noise at Dublin Airport
• Air Quality at Dublin Airport
• Managing Traffic Congestion at Dublin Airport
• Sustainability at Dublin Airport
• Community Affairs and Land Planning at Dublin Airport
• Environmental, Social and Governance at Dublin Airport
• Sustainability at Cork Airport
71. On this basis, it is clear that many of the activities of DAA affect or are likely to affect / designed to protect the elements of the environment referred to in paragraphs (a) and (b) of article 3(1) of the AIE Regulations. It follows therefore that DAA holds a significant amount of environmental information, access to which is important to enable members of the public to know and understand what is happening in the environment around them and effectively participate in environmental decision-making. Indeed, due to the scale of its operations, as well as an increased public interest in this body, DAA has seen a rise in recent years in the number of AIE requests it has received, and also an increased number of appeals concerning its decisions on requests.
72. DAA has argued that recent case law developments including the judgment of Heslin J. in the High Court in ESB No. 2 and the Commissioner’s recent decision in case OCE-139193-Z4J9X2, provide sufficient bases for determining that the requested information does not constitute “environmental information”. Firstly, as regards the decision in OCE-139193-Z4J9X2, I do not agree that the facts of this case are so similar as to draw the same conclusion, not least as this case had no direct link or connection to the implementation of the AIE Regulations. In that case, the measure was determined to relate to a personnel matters, i.e. the decision by Coillte to run a bonus scheme for key management personnel and its decision on how to structure that scheme, and where there was no evidence before me to enable a conclusion that this measure was likely to affect or designed to protect the environment.
73. In relation to DAA’s reference to the judgment in ESB No. 2 (and in Friends of the Irish Environment), DAA notes that the courts have drawn a distinction between the aim of promoting effective participation in environmental decision-making and the promotion of public information in judicial matters and public involvement in decision making in that area. DAA has argued that if pleadings and other documents adduced in court proceedings or other quasi-judicial processes on environmental matters are not taken as within scope of the AIE Regulations, then by extension the information sought in this case can also be considered similarly detached from relevant public participatory activities. However, I do not agree that this conclusion can be drawn from these judgments. To agree with this would be akin to creating a blanket exemption for information concerning or related to court proceedings or quasi-judicial processes. This would not, in my view, accord with the purpose of the Regulations and the Directive and each case must be addressed on its own particular facts.
74. In relation to the judgment in ESB No. 2, also pointed to by DAA, Heslin J. was following Collins J. in Redmond, at para. 63, and approved the English decision of Beatson L.J. in Henney, that there must be “a real and substantial possibility that [the measure] will affect the environment, whether directly or indirectly”.
75. It is clear from the Recitals of the Aarhus Convention that the very purpose of the AIE Regime is environmental protection. For example, Recital 9 states: “in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns.”
76. Thus the implementation of the AIE Regulations by a body such as DAA self-evidently has an impact on the environment. At a minimum, decisions made without transparency and public participation will lack public support. This point is made in Recital 10 of the Aarhus Convention itself:
“Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment”
77. As stated in Recital 1 of the Directive, implementation of the AIE regime will lead to a better environment. The measure, therefore, is “likely to affect” the environment as there is a real and substantial possibility that it will affect the environment.
78. The nature of DAA’s business means that the manner in which it implements the AIE regime as a whole (both in relation to access requests and its organisation and dissemination obligations in article 5 of the Regulations and Article 7 of the Directive) is likely to have an impact on the environment. Taking an approach to the AIE regime that disseminates and discloses the legal minimum of information, or in DAA’s own words – “the truest interpretation of what information is available under the Regulations as enacted”, is not wrong per se. However, as a matter of fact, such an approach is likely to have an impact on the environment as it is likely to result in less environmental information being released on request or actively disseminated.
79. But the question here is a simple one. Will the implementation of the AIE Regime by DAA affect the environment, or is it likely to affect the environment? To answer that question in the negative is the same as saying that the access to information provisions of the Aarhus Convention will not lead to a better environment and the aims of that Convention, as set out in its recitals, will not be met. I cannot accept that this is the case. It was clearly the view of the signatory States to the Aarhus Convention that having access to environmental information will achieve the aims of Recital 9, set out in paragraph 69.
80. Similarly, it was also the views of the signatory States that there can be no effective public participation in environmental matters without information, as set out in recitals 7 and 8:
“Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations,
Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights,”
81. Accordingly, I am satisfied that the implementation of the AIE Regulations by DAA is a measure affecting or likely to affect the elements of the environment as set out in paragraph (c) of the definition of environmental information.
82. I understand that this is a departure from the conclusion of a previous Commissioner in CEI/12/0008. In ESB No. 2 the High Court overturned a decision of this Office on a number of bases, including that the Commissioner had departed from a previous decision without given adequate reasons for this change of position.
83. The decision in CEI/12/0008 was issued in 2013, almost twelve (12) years ago. In that time there have been a number of Irish, English and EU cases that have clarified the law in relation to the definition of environmental information. I would refer in particular to the Minch, Redmond and Henney judgments. Minch clarified the test for whether a measure had an impact on the elements and factors on the environment while Redmond clarified that the information itself does not need to have this impact, but the focus was on the measure in question.
84. In CEI/12/0008 the then Commissioner concluded that the AIE regime was designed to protect the environment, but only in an “indirect and aspirational way”. In my view the analysis in that decision that allowed the then Commissioner to reach that conclusion would not succeed in light of the tests set out in Minch and Redmond. For example, the decision in CEI/12/0008 states that the connection between an AIE request and any impact on the environment is too remote. But in Minch the Court of Appeal states that the test was whether the measure was capable of having an impact on the environment. Applying that test I think that it is clear that in this case how DAA implements the AIE regime is capable of having an impact on the environment given the extent of its environmental operations and the quantities of environmental information that it holds.
85. Later on in that decision, the conclusion is that the processing of AIE requests is not “designed” to protect the environment. In my view that is not the correct analysis. It is more correct to say that the implementation of the AIE regime, which includes processing AIE requests, affects, or is likely to affect, the environment, in the sense that it is capable of affecting the environment. That is the test set out in article 3(1)(c) of the AIE Regulation and in Minch.
86. Finally, the decision in CEI/12/0008 states that the intention of an applicant in making a request is not a relevant consideration. I do not believe that this is correct. What is at issue here is whether the AIE regime as implemented by DAA affects or is likely to affect the environment. While the requestor does not have to state their interest in making the request, that does not mean that the framework in which a request is made cannot be used to consider whether a measure has an impact on the environment.
87. But even if I am wrong in this, I simply do not accept that the AIE regime has environmental protection only as an indirect or aspirational aim. The very purpose of the regime is environmental protection and I have set this out above. The signatory States to the Convention, and the EU legislature in drafting the Directive, put environmental protection at the heart of the access regime. It is the very purpose of the Aarhus Convention, and access to information is one of three limbs that allows Member States to achieve that aim. To claim that this is indirect or aspirational is wrong as a matter of law.
Whether the information is ‘on’ the measure or activity
88. As “any information … on” a measure or activity affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information “on” such a measure (Redmond at paragraphs 57 and 59). As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). The question as to whether information is “on” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure” (at paragraph 48).
89. Importantly, while Henney uses the terms “critical”, “fundamental” or “integral”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
90. I note in its submissions that DAA refers to the purposive test as articulated in Henney. The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and AIE Directive (see Redmond at paragraph 99). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99). The test set out in Henney was also explicitly endorsed by the High Court in the RTÉ case (see paragraph 52) and is also referenced in the recent ESB No. 2 judgment.
91. The purpose and outcome of any engagement on DAA’s part of external lawyers in the AIE process is done to ensure the proper implementation of the AIE Regulations and thereby facilitating appropriate or ‘correct’ access to environmental information. I consider that such intention clearly serves to advance the purpose of the AIE Regulations, and consequently the Directive and the Aarhus Convention.
92. DAA has argued that the engagement of external legal services can be necessary to correctly apply the legislation. This is clearly more than an incidental element of the AIE process. I would consider this in fact to be central to the implementation of the legislation, in particular in situations where a public authority which has adopted the principles and provisions of corporate governance set out in the Code of Practice for the Governance of State Bodies considers it necessary to expend resources in this way.
93. DAA’s submissions to this Office did not make reference to the requestor’s stated reasoning for seeking the information in question, i.e. to inform a submission to the ACCC on the prohibitive cost of appeals to this Office.
94. The ACCC was established under Article 15 of the Aarhus Convention. The Committee serves as a compliance mechanism whereby Parties to the Convention or members of the public may, for example, bring a concern regarding the implementation of the Convention to the Committee for consideration. Members of the public and NGOs bring access to justice issues before the Compliance Committee in situations where they consider that the relevant domestic legal framework fails to comply with any of the requirements of Article 9 of the Convention, either generally, in the systemic sense, and / or in relation to a specific case.
95. The appellant contends that the issue of costs and financial barriers to the exercise of environmental rights is an important aspect of the Aarhus Convention. I note that Article 9 of the Convention in particular addresses a wide range of important practical matters concerning access to justice, including that the costs involved in engaging and participating in the review procedure must be affordable (‘not prohibitively expensive’).
96. I consider that the type of information sought by the appellant may indeed be relevant to the Committee, for example, if it is alleged that arrangements for access to justice are inaccessible due to prohibitive costs. Consideration of wider operability of the AIE regime, including possible complexity of the legislation may also be warranted, in particular if it can be shown that public authorities such as DAA regularly consider it necessary to engage external lawyers in order to correctly apply the legislation (other than on an exceptional basis).
97. In addition, I consider that the legal representation and costs information requested in parts (2), (3), (4) and (5) of the AIE request is information ‘on’ the measure because it is information that gives an insight into DAA’s approach to its obligations. It also influences the approach that a requester must take if it is to successfully obtain environmental information from DAA or engage effectively with the OCEI on appeal, in turn impacting on the ability of some requesters to successfully obtain information. For example, if the information provided by DAA suggests that legal advice or assistance is sought in relation to many of the AIE requests made to DAA a requester could conclude that their requests ought to be framed in a manner that fully addresses any legal concerns that might arise. Similarly, if the information suggests that legal advice or assistance is sought in relation to many of the appeals to this office, an appellant could conclude that they are likely to have to engage with legal points in any appeal to this Office if they are to participate effectively in the appeal process. This is notwithstanding the inquisitorial role of this Office.
98. I am therefore satisfied that information concerning the costs of engaging external legal services for processing AIE requests, appeals and litigation is information that is on the implementation of the AIE Regulations by DAA and is not at such a remove from the AIE process to render it too remote. As such, I am satisfied that all of the information requested is information “on” a “measure or activity” within the meaning of article 3(1)(c) of the Regulations and should be considered “environmental information” within the scope of the AIE Regulations. It is clearly about the measure, it relates to it and concerns it. The appellant has set out a clear process that he is engaging in and how the information will assist him in that process. It is in this framework that I consider that the information is on the AIE regime. The appellant will be better informed by access to this information and better able to contribute to an environmental process. Release of the information advances the purposes of the Aarhus Convention and the Directive. On that basis, I am remitting the matter to DAA for consideration of release of the information requested in accordance with the provisions of the AIE Regulations.
99. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I hereby annul DAA’s internal review decision in this case and I direct it to provide the appellant with a new internal review decision in respect of the request.
100. 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