An Taisce and Department of the Environment, Community and Local Government

• Court: Commissioner for Environmental Information
• Case Number: CEI/15/0016
• Decision Date: 31 January 2017
• Issuer: Department of the Environment, Community and Local Government
• Applied Rules: Art.3(1) Art.9(1)(b) Art.10(1), European Communities (Access to Information on the Environment) Regulations, 2007

An Taisce and Department of the Environment, Community and Local Government

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0016

Published on 31 January 2017

Background

In 2011, the European Commission commenced infringement proceedings against Ireland concerning the Habitats Directive (92/43/EC) and the EIA Directive (85/337/EEC) and relating to peat extraction on protected bogs. On 19 June 2013, the Department issued a letter to local authorities seeking assistance in completing a "Peatlands Survey". The objective of the Peatlands Survey was to inform a "conclusions paper" to be shared with the European Commission and to support "better enforcement, regulatory change, as well as awareness raising". This letter included maps of 126 locations in Ireland which were of interest to the Department with respect to peat extraction. The Department sought information on the planning status of these sites so that it could "“comment on how the overall position in relation to industrial peat extraction can be considered compliant with Directive 2011/92/EU”. The Department's letter requested that the local authorities "forward to the Department information in relation to the planning status of these sites, specifically whether they are operating with permission, comprise exempted development, unauthorised development, etc.". The Department clarified that it was not seeking definitive statements from the local authorities on planning matters, stating "It is emphasised that you are requested to give the planning authority’s view/assessment in relation to the planning status as opposed to a definitive legal statement (e.g. the matter of whether e.g. development is exempted would be ultimately be a matter for An Bord Pleanála or the courts in the event of a judicial review). Your assessment should be supported by the planning authority’s own information as much as possible including, preferably, a site inspection."

The local authority survey returns were collated in a spreadsheet. This spreadsheet contains answers to 14 questions, set out in columns lettered A to N. On 10 November 2014, the Department disclosed a redacted copy of the Peatland Survey report to Friends of the Irish Environment. The Department redacted all information contained in column C, which records details of the "Owner/Operator" of the sites. The other information was disclosed.

On 27 February 2015, the appellant made a request for access to environmental information under the AIE Regulations. The appellant's request was for "an unamended/unredacted version" of the "spreadsheet of planning authority returns in respect of DECLG's Peatlands Survey, such that the names of the owners/operators of the relevant sites are visible." The Department refused the appellant's request on the basis that the information did not fall within the meaning of the definition of "environmental information" as provided by article 3(1) of the AIE Regulations. The appellant requested an internal review on 1 May 2015. In an internal review decision of 11 May 2015, the Department affirmed the initial decision, and provided supplemental grounds for refusal under articles 8(a)(i) and 8(a)(ii). The appellant appealed the internal review decision to my Office on 8 June 2015.

Scope of Review

On appeal to my Office, the Department reiterated the reasons for its internal review decision, and also argued that the exceptions under article 8(a)(iv) and 9(2)(d) applied to the information requested. In the course of my review, I have considered whether the specific information requested by the appellant is environmental information, and whether the information sought relates to emissions into the environment for the purposes of article 10(1). I have also considered the exception under article 9(1)(b) and the public interest in disclosure under article 10(3).

Directive 2003/4/EC (the Directive) implements the first pillar of the United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ("the Aarhus Convention"). The Directive is transposed into Irish law by the AIE Regulations. In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) published by the Minister for the Environment, Community and Local Government [the Minister's Guidance]; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

The Department's submissions

The Department said that information on the identities of owners and operators, as submitted by local authorities in this instance, did not fall within the definition of "environmental information" contained in article 3(1) of the AIE Regulations. It argued in the alternative that four exceptions to disclosure applied as set out below.

The Department submitted that the exception under article 8(a)(i) applied which provides that, subject to article 10, a public authority shall not make available environmental information where disclosure would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law. The Department contended that the information sought is personal information within the definition in section 2(1) of the FOI Act 2014, and that section 37(1) of that Act provides for the confidentiality of such information.

The Department submitted that the exception under article 8(a)(ii) applied which provides that, subject to article 10, a public authority shall not make available environmental information where disclosure would adversely affect the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information. The Department relied on this ground at internal review stage, but did not make detailed submissions as to how this exception to disclosure applied.

The Department submitted that the exception under article 8(a)(iv) applied to the information. This article provides that, subject to article 10, a public authority shall not make available environmental information where disclosure would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law. The Department stated that it relies on the provision of information from local authorities in order to carry out its functions. The Department submitted that section 35(1)(a) of the Freedom of Information Act 2014 applies to the information, and so the exception under article 8(a)(iv) prevents disclosure.

The Department submitted that the exception under article 9(2)(d) applied which provides that, subject to article 10, a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure.

With regard to the public interest test under article 10(3), the Department stated that it had considered the public interest in proper enforcement of planning and environmental law, and weighed this against the interest in protecting the confidentiality of personal information, and the need to protect third parties from damage as a result of the publication of incorrect information.

The Appellant's submissions

The appellant contended that information on the identity of owners and operators of peat extraction sites was within the definition of environmental information. The appellant stated that article 8(a)(i) could not apply to information which should be included in local authority Extractive Industries Registers pursuant to the Waste Management (Management of Waste from the Extractive Industries) Regulations 2009. The appellant stated that article 8(a)(ii) could not apply to the information, as persons and undertakings operating peat extraction sites were capable of being put under an obligation to confirm the details of site operations.

The appellant submitted that the public interest was in favour of disclosure of the information, and also stated that the request related to emissions into the environment for the purposes of article 10(1) of the AIE Regulations, (which would prevent the operation of exceptions under article 8 and 9(1)(c)).

An Investigator with my Office put details of Department's submissions to the appellant for comment; however, no response was received.

Analysis and Findings

Consideration of the definition of "environmental information"

Article 3(1) of the AIE Regulations defines "environmental information" as

"any information in written, visual, aural, electronic or any other material form on—

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those...