An Taisce and Bord na Móna

• Case Number: CEI/14/0002
• Decision Date: 16 December 2015
• Issuer: Bord na Móna
• Applied Rules: Art.7(5) Art.8(a)(iv) Art.9(1)(b), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

An Taisce and Bord na Móna

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0002

Published on 16 December 2015

Appeal to the Commissioner for Environmental Information

Case CEI/14/0002

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2014

Appellant: An Taisce

Public Authority: Bord na Móna (BnM)

Issue: Whether BnM was justified in refusing the appellant's request for access to a copy of any correspondence, reports, documents or other information held by BnM plc and/or its subsidiary companies relating to compliance with, or breaches of, the EIA Directive (Directive 85/337/EEC, now codified as Directive 2011/92/EU) in respect of peat extraction by BnM plc and/or its subsidiary companies

In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of BnM and found that it was justified in refusing the request under Articles 7(5), 8(a)(iv), and 9(1)(b) of the Regulations. He affirmed the decision of BnM accordingly.

Background

In a request dated 17 January 2014, the appellant sought access under the AIE Regulations to a copy of any correspondence, reports, documents or other information held by BnM plc and/or its subsidiary companies relating to compliance with, or breaches of, the EIA Directive (Directive 85/337/EEC, now codified as Directive 2011/92/EU) in respect of peat extraction by BnM plc and/or its subsidiary companies. On 5 February 2014, BnM wrote to the appellant to request an extension of time by agreement in which to make a decision for the purpose of establishing the processes and procedures necessary to ensure compliance with the Regulations. On 17 February 2014, the appellant notified BnM that it was not willing to agree to an extension of time. On 18 February 2014, the appellant applied for an internal review on the basis of BnM's deemed refusal of its request. In a decision dated 4 April 2014, BnM refused the request under Articles 8(a)(iv) and 9(1)(b) of the Regulations.

On 8 April 2014, the appellant appealed to this Office against BnM's decision. The appeal was accepted on 1 May 2014, but BnM initially questioned my jurisdiction over the matter. In essence, BnM argued that the appeal was premature since it did not issue its decision until 4 April 2014. However, under Articles 7(2)(a) and 10(7) of the Regulations, a decision refusing the request was deemed to have been made one month from the date of the receipt of the original request. While Article 7(2)(b) of the Regulations allows for an extension of the deadline for a period no later than two months from the date on which the request was received, this provision was not invoked in this case; that is to say, while BnM wrote to the appellant seeking an extension of time in which to make its decision, it did not expressly refer to Article 7(2)(b), it did not say that the reason for the extension was the volume or complexity of the environmental information sought, and it did not specify a date, not later than two months from the date on which the request was received, by which the response would be made. In the circumstances, the appellant's internal review request dated 18 February 2014 was valid under Article 11(1) of the Regulations.

I have now completed my review under Article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by BnM and the appellant. I have also had regard to: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention.

Scope of Review

The question before me is whether BnM was justified in refusing the appellant's request for access to information held by BnM and/or its subsidiary companies relating to compliance with, or breaches of, the EIA Directive in respect of peat extraction by BnM and/or its subsidiary companies.

Analysis and Findings

Article 7(5)

BnM has identified 50 records as falling within the scope of the request. According to an index prepared by BnM, the records span a period from 3 December 2012 to 24 September 2013. However, the record dated 3 December 2012 includes an email chain dating from 27 November 2012, and a record dated 10 December 2012 includes a note of legal advice dating from 2006. In its decision dated 4 April 2014, BnM refused access under Articles 8(a)(iv) and 9(1)(b) of the Regulations on the basis that the records were generated for the purposes of anticipated litigation and for the purposes of defending actual litigation brought by the appellant, among others.

In its initial submission to this Office dated 23 May 2014, BnM referred to a request made on 13 June 2012 by the Friends of the Irish Environment (FIE) to the Planning Authority (Westmeath County Council) under section 5 of the Planning and Development Act 1963 (as amended) to determine "whether the drainage of bogland, peat extraction and handling, the creation of accesses from public roads and other associated works by [Bulrush Horticulture Limited and Westland Horticulture Limited] are development or exempted development". BnM claimed that planning permission and accompanying EIA Directive matters became "a real and present litigation threat" once An Bord Pleanála (ABP) ultimately determined [in April 2013] that the works were development and not exempted development and as such were subject to the requirements of the planning permission process. In addition, BnM referred to the complaint made by FIE to the European Commission (EC) in 2012 pursuant to which, according to BnM, Ireland was found to be in breach of the EIA Directive in failing to correctly implement the EIA Directive in circumstances of, inter alia, peat extraction.

BnM further stated that, as anticipated, on 17 January 2014, the appellant served High Court judicial review proceedings, together with the request for access to information in this case, on BnM and its subsidiary, Edenderry Power Limited, seeking to challenge the decision of ABP to grant an extension of time to the planning permission of Edenderry Power Limited. Parallel High Court proceedings were received from FIE and another party.

However, the appellant maintained that BnM should hold additional information relevant to the request that was not created in the context of anticipated litigation given that the EIA Directive has been in effect since 1988. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested information is held by or for the public authority concerned. This Office's approach to dealing with cases where a public authority has effectively refused a request under Article 7(5) is set out in previous decisions published on our website at www.ocei.gov.ie, such as CEI/11/0009, Ms. Rita Canney and Waterford City Council (7 June 2012), and CEI/08/0012, Cllr Cullen and Department of Environment, Heritage and Local Government (27 Oct. 2009). As these decisions explain, where a public authority effectively seeks to refuse a request for environmental information on the basis of Article 7(5), I must be satisfied that adequate steps have been taken to identify and locate relevant records, having regard to the relevant circumstances. In determining whether the steps taken are adequate in the circumstances, I consider that a standard of reasonableness must necessarily apply.

In support of its submissions on the matter, the appellant provided a sample of Irish press articles showing that the question of the EIA Directive's relevance to BnM's peat extraction business had been the subject of commentary since 1987. As it therefore seemed reasonable to expect that BnM may hold information relevant to the request that would not fall within the ambit of Articles 8(a)(iv) and 9(1)(b) because of anticipated litigation and/or the EC proceedings, my Investigator wrote to BnM on 16 June 2015 to ask it to address the "search" issue that had arisen. At the time, however, my Investigator had not yet had sight of any of the records at issue (which were not forwarded to this Office until July 2015).

In subsequent submissions, BnM identified the relevant personnel who were asked to search for records falling within the scope of the request, which, as BnM stressed, focuses on compliance with or breaches of the EIA Directive. The relevant personnel identified are the following: [names, titles, and employment history of named staff members removed].

BnM said that it does not have a formal records management policy. However, it explained that [a named staff members], Solicitor, spoke to each of the relevant personnel listed above, all of whom supplied all the relevant records in his or her possession. For completeness, an email requesting a further search was sent by [the Information Officer] on 30 June 2015 to the others listed above (apart from one individual, who was on extended leave), all of whom responded, but no new documentation was located as a result. BnM also explained that the relevant people searched all of their correspondence, reports, documents and other information, including all of their electronic files/folders and emails sent and received to/from them regarding the subject matter. In the circumstances, and having regard to the contents of the records provided for the purposes of my review, my...