Bord Na Móna Plc v Commissioner for Environmental Information

• Jurisdiction: Ireland
• Judge: Ms. Justice Niamh Hyland
• Judgment Date: 07 February 2023
• Neutral Citation: [2023] IEHC 57
• Court: High Court
• Docket Number: Record No. 2021/299MCA

In the Matter of an Appeal Pursuant to Article 13 of the European Communities (Access to Information on the Environment Regulations) 2007 – 2018

Between

Bord Na Móna Plc

Appellant

and

The Commissioner for Environmental Information

Respondent

and

Right to Know CLG

Notice Party

[2023] IEHC 57

Record No. 2021/299MCA

THE HIGH COURT

Environmental information – Statutory interpretation – Directive 2003/4/EC – Appellant appealing against the respondent’s decision that environmental information held by a subsidiary of the appellant was held “for” the appellant – Whether a body may be treated as holding environmental information on behalf of a public authority where it also holds that information on its own behalf

Facts: The appellant, Bord na Móna Plc, brought a statutory appeal under Order 84C of Rules of the Superior Courts by way of originating notice of motion of 12 November 2021 against a decision of the respondent, the Commissioner for Environmental Information, of 15 September 2021. By that decision, the respondent decided that environmental information held by a subsidiary of the appellant, Bord na Móna Biomass Ltd (Biomass) was held “for” the appellant within the meaning of Article 3 of the European Communities (Access to Information on the Environment) Regulations 2007-2018. The appellant sought an order setting aside the decision and substituting for it a determination that any such information held by Biomass was not held either by or for the appellant and ancillary reliefs, including an order remitting the matter back to the respondent. The appeal raised the novel question as to whether a body may be treated as holding environmental information on behalf of a public authority where it also holds that information on its own behalf.

Held by the High Court (Hyland J) that it is possible to interpret “on behalf of” to cover situations where the holder of information is holding it both for its own purposes, and for the public authority; the principles underlying Directive 2003/4/EC, including the imperative to ensure the widest access possible to environmental information, pointed towards that interpretation. She held that a narrower interpretation would require the holder of the information to have no independent interest in the information if they were to be treated as holding for a public authority; such an interpretation would considerably reduce the situations in which a body would be treated as holding information for a public authority and would potentially operate to reduce the right of access to environmental information. She held that, given the structure of the Directive, specifically the definition of public authority, the respondent was correct in not treating control of Biomass by the appellant as the determining factor in deciding that the information was held for the appellant; instead, he appropriately considered the legislative structure under the Turf Development Acts 1946 to 1998 governing Biomass and the appellant, as well as the surrounding factual context of the relationship between the two companies. She could see no error of fact or law in his conclusion that the information sought was held by Biomass for the appellant’s commercial purposes as well as for its own commercial purposes and therefore was held for the appellant within the meaning of the Directive. She held that the respondent was entitled to consider the nature of the relationship between Biomass and the appellant where he did so for the sole purpose of informing his decision as to whether Biomass was in fact holding information for the appellant. She held that, contrary to the submissions of the appellant, the respondent’s decision did not undermine the distinction between parents and subsidiaries or disregard the concept of separate legal personality in the context of the Directive.

Hyland J rejected the appellant’s appeal.

Appeal dismissed.

JUDGMENT of Ms. Justice Niamh Hyland of 7 February 2023

Summary of Decision

1 The obligations imposed on public authorities under Directive 2003/4/EC on public access to environmental information apply both where the public authority is holding environmental information itself and where another body is holding that information for it. Holding information for a public authority is defined in the Directive as holding information “on behalf of” the public authority. This appeal raises the novel question as to whether a body may be treated as holding environmental information on behalf of a public authority where it also holds that information on its own behalf. I conclude that it is possible to interpret “on behalf of” to cover situations where the holder of information is holding it both for its own purposes, and for the public authority. That being so, the principles underlying Directive 2003/4, including the imperative to ensure the widest access possible to environmental information, strongly point towards this interpretation.. A narrower interpretation would require the holder of the information to have no independent interest in the information if they are to be treated as holding for a public authority. Such an interpretation would considerably reduce the situations in which a body would be treated as holding information for a public authority and would potentially operate to reduce the right of access to environmental information.

2 In this case, the Commissioner decided that Bord na Móna Plc (“Bord na Móna”) were incorrect in refusing access to environmental information held by one of their subsidiaries, Biomass. The Commissioner decidedthat Biomass was holding information for Bord na Móna. Correctly, given the structure of the Directive, specifically the definition of public authority, the Commissioner did not treat control of Biomass by Bord na Móna as the determining factor in deciding that the information was held for Bord na Móna. Instead, he appropriately considered the legislative structure under the Turf Development Acts 1946 to 1998 (the “Turf Acts”) governing Biomass and Bord na Móna, as well as the surrounding factual context of the relationship between the two companies. He concluded that the information sought was held by Biomass for Bord na Móna's commercial purposes as well as for its own commercial purposes and therefore was held for Bord na Móna within the meaning of the Directive. For the reasons explained below, I can see no error of fact or law in his Decision. The Commissioner was entitled to consider the nature of the relationship between Biomass and Bord na Móna where he did so for the sole purpose of informing his Decision as to whether Biomass was in fact holding information for Bord na Móna.

3 Contrary to the submissions of Bord na Móna, the Commissioner's Decision did not undermine the distinction between parents and subsidiaries or disregard the concept of separate legal personality in the context of Directive 2003/4. The Directive acknowledges the concept of separate legal identities. The Commissioner expressly recognised the separate legal identities of Biomass and Bord na Móna and did not treat control as the determining factor in deciding whether Biomass held information for Bord na Móna. The Commissioner's conclusion was informed by the specific statutory and factual context in which the two companies operate.

Background to the Appeal

4 This is a statutory appeal brought under Order 84C of Rules of the Superior Courts (“RSC”) by way of originating Notice of Motion of 12 November 2021 issued by Bord na Móna against a Decision of the Commissioner for Environmental Information (the “Commissioner”) of 15 September 2021. By that Decision, the Commissioner decided that environmental information held by a subsidiary of Bord na Móna, Bord na Móna Biomass Ltd (“Biomass”) was held “for” Bord na Móna within the meaning of Article 3 of the European Communities (Access to Information on the Environment) Regulations 2007 – 2018 (the “AIE Regulations” or the “Regulations”).

5 Bord na Móna seeks an Order setting aside the Decision and substituting for it a determination that any such information held by Biomass was not held either by or for Bord na Móna and ancillary reliefs, including an Order remitting the matter back to the Commissioner.

6 The Decision of the Commissioner arose following a request from Right to Know Clg (the “notice party”) to Bord na Móna on 19 April 2019 seeking the following information:

• “1. A breakdown (in excel format) of all biomass imports from January 2017 to present, to include:

  • a. The country of origin;

  • b. The amount imported (in tonnage);

  • c. The companies from whom Bord na Móna have purchased biomass;

  • d. The name of the Grower (e.g. name of plantation, producer, etc.), Miller and others (sic) known companies along the supply chain;

  • e. Documentation to show the biomass is purchased from certified sustainable sources.

• 2. The agenda, minutes (to include draft versions) and associated documents of any meetings with ESB and/or DCCAE representatives at which imported and/or domestic biomass was discussed from June 2018 to present.

• 3. All correspondence (to include attached and/or associated documents) with the Minister for Climate Action and/or the Secretary General of DCCAE that mentions imported and/or domestic biomass from June 2018 to present.”

7 On 17 May 2019 Bord na Móna responded, refusing access to the information. It stated that, to the extent that the information sought existed, it was not held by or for Bord na Móna but was held by Biomass. It stated that Biomass was not a public authority and was not subject to the AIE Regulations. In the alternative, it stated that the exceptions in Articles 9(1)(c), (9)(2)(a) and 9(1)(d) of the AIE Regulations would apply to a greater or lesser extent to the information, with the result that there was no obligation to disclose it. On 17 May 2019 the notice party requested an...