An Taisce and the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0033
• Decision Date: 16 March 2017
• Issuer: Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007

An Taisce and the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0033

Published on 16 March 2017

Background

On 7 July 2016, the appellant submitted an AIE request to the Department asking for:

"A copy of the Minister's diary showing all appointments with any non-Government body, party, agency or individual(s) since the election to end of 2016. To clarify this: the period requested includes the period from the election in advance of the formation of the current Government and should include all future diary appointments also to the end of the year."

The appellant asked for the information to be provided by the following day.

The Department replied on 14 July 2016, expressing the view that the Minister's diary was not environmental information and offering instead to process the request as a Freedom of Information (FOI) request, if the appellant found that acceptable.

The appellant replied on the following day, making an FOI request for the same information but also taking the view that the Department's reply of 14 July 2016 constituted a refusal of the AIE request. Dissatisfied with this refusal, the appellant requested an internal review of the AIE decision, and argued that the requested information is environmental information.

The Department issued an internal review decision on 29 July 2016. The decision affirmed the earlier decision to refuse the request because the Minister's diary "does not contain" environmental information. It added that:

"ministerial diaries are subject to change, and as such are, in relation to future commitments, draft documents which remain subject to completion. It is the practice of this Department to publish the Minister's diary on a regular basis and in due course the final diary in respect of each period, including that specified in your request, will be made available on the Department's website at http://www.ahrrga.gov.ie/about/ministers/ministers-diary/.

Dissatisfied, the appellant appealed to my Office on 26 August 2016.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is firstly to review the Department's internal review decision and to affirm, annul or vary it. If I find that refusal was not justified for the reasons given in that decision, my role is to decide whether it would be appropriate for me to require the Department to make environmental information available to the appellant.

In conducting my review I took account of the submissions made by the appellant and the Department. I 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).

Relevant AIE provisions

Article 3(1) 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).

Article 3(2) provides that "public authority" does not include any body when acting in a judicial or legislative capacity.

Article 4(1) provides that the AIE Regulations apply to environmental information other than, subject to sub-article (2), information that, under any statutory provision apart from the AIE Regulations, is required to be made available to the public, whether for inspection or otherwise.

The decision under review

The Department refused the request for one reason: because it did not regard the requested information as environmental information. It also commented that a ministerial diary is a document in the course of completion and it indicated where ministerial diaries are published. This comment and further information were not stated to be reasons for refusal. The Department has confirmed that this understanding is correct.

In response to a query from my investigator, the Department explained how it made its decisions:

• The Minister's working diary is available to authorised officials within the Department as an online read-only document.
• The Department's original decision-maker examined it on 8 July 2016 and formed a preliminary view before considering the matter further. He examined the online diary briefly again on the 14 July 2016 and concluded that it did not contain information that was subject to the AIE regulations.
• While the above decision was being made, the Minister's diary for the period 1 January - 30 June 2016 was being prepared for publication on the Department's website, as per standard practice. That process involved the redaction of personal appointments which would be included in the working diary for practical reasons but which did not relate to official business. The diary for the six month period to the end of June 2016 was published online on 14 July 2016.
• Later, on 29 July 2016, the Department's internal-review decision-maker considered the online diary as it stood on that day and formed the view that it did not contain environmental information.

The appellant's position on the decision under review

The appellant argued, both in its request for internal review and in submissions to my Office, that the requested information is environmental information. The essence of its argument is as follows:

• Section 11(1) of the Wildlife Acts 1976-2010 provides that "It shall be a function of the Minister to secure the conservation of wildlife and to promote the conservation of biological diversity".
• That function refers to both 'elements' and 'factors' covered by paragraphs (a) and (b) of the definition of environmental information set out in the AIE Regulations.
• This function of the Minister could reasonably be expected to be reflected in her diaried activity: an activity affecting or likely to affect the elements and factors referred to in the definition.
• The Minister's activities might inform or be capable of informing the thinking of the Government in making decisions.

The appellant cited the High Court judgment in Minch v Commissioner for Environmental Information [2016] IEHC 91 in support of its argument.

Analysis of the...