Colman O'Sullivan, RTÉ and The Office of Public Works

• Case Number: CEI/15/0022
• Decision Date: 27 October 2016
• Issuer: Office of Public Works
• Applied Rules: Art.8(a)(i) Art.8(a)(ii) Art.9(1)(c) Art.9(2)(d) Art.10(3), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Colman O'Sullivan, RTÉ and The Office of Public Works

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0022

Published on 27 October 2016

1. Background
2. Scope of Review
3. Relevant AIE provisions
4. Analysis
5. Decision

Background

The OPW is the State-body responsible for maintaining and operating Ireland's most important heritage sites. One of those sites is the Skellig Islands ("the Skelligs"), which comprise two small rocky islands off the coast of County Kerry. The larger of the two islands is Skellig Michael (Sceilg Mhichíl, in Irish). Skellig Michael is a UNESCO World Heritage Site. It is also designated under the EU Birds Directive as part of the Skelligs Special Protection Area. The National Parks and Wildlife Service (NPWS) (a section of what was the Department of Arts, Heritage and the Gaeltacht and is now the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs) describes the Skelligs as one of the top five seabird sites in Ireland and as "a site of international importance". The site is also a National Monument.

The Irish Film Board (IFB) is Ireland's national film development agency. It was established by the Irish Film Board Act 1980.

Lucasfilm Ltd (Lucasfilm) is an American film and television production company based in the USA. It is owned by the Walt Disney Company (Disney). In the matters which are relevant to this case, it communicated with the Minister for Arts, Heritage and the Gaeltacht through a film production company based in the United Kingdom (Space Bear Industries (UK) Ltd). I will refer to these entities collectively as "the film company".

In 2014, scenes from a Star Wars movie were filmed by Lucasfilm at Skellig Michael with the consent of the Minister for Arts, Heritage and the Gaeltacht. Afterwards, information freely available on the internet indicated that there were plans to make another Star Wars movie in 2015, although it was unclear if that might involve filming at Skellig Michael or, indeed, in Ireland. On 9 June 2015, the Irish Times newspaper published an article entitled "Star Wars filming may return to Skellig Michael -- Irish Film Board refuses to deny discussions on use of UNESCO world heritage site in film". On the same day, the appellant submitted an AIE request to the OPW, seeking the following:

"Any correspondence from or to the OPW on proposals to film on or around the Skellig Islands since the shoot by Disney Lucasfilm on Skellig Michael last year".

On 6 July 2015, the OPW notified the appellant that it required a one month extension in which to give its decision, owing to the complexity of the records relating to the request.

The OPW gave notice of its decision to refuse access to the requested information on 4 August 2015. It provided the appellant with a schedule of 53 records to which it was refusing access.

On 18 August 2015, the appellant requested an internal review of the decision.

On 8 September 2015, the Minister for Arts, Heritage and the Gaeltacht publically confirmed that she had granted consent for Lucasfilm to film at Skellig Michael later that month. She said that specialist staff from her Department had been "in discussions with Lucasfilm since March of this year" and "months of preparatory work" had been done.

On 14 September 2015, the OPW affirmed its original decision. The following day, the appellant appealed to this Office.

On 1 December 2015, the OPW notified the appellant that, in light of the Minister's announcement on 8 September 2016, it was in a position to vary its decision and it granted access to some of the requested information. On 15 December 2015, the OPW made a submission to my Office in which it presented its reasons for refusal to provide access to the remaining information.

My investigator asked the appellant if his interest was confined to filming by Disney Lucasfilm. The OPW corresponds with all parties wishing to film on the Skelligs, and the AIE request, as originally worded, captured correspondence relating to short films being made for heritage/tourism promotion purposes. The appellant agreed to limit his appeal to matters relating to Disney Lucasfilm. I thank him for that, since it allowed my Office to focus on a much smaller number of records and bring the case to closure sooner than would otherwise have been the case. My investigator then asked the OPW for a fresh statement of its position, in light of the narrowed scope of the request and the passage of time. The OPW responded, saying that it had reconsidered the matter and concluded that its position was unchanged.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review the OPW's internal review decision and to affirm, annul or vary it.

In conducting my review I took account of the submissions made by the appellant, the OPW and the IFB. My investigator invited a representative of the film company which had corresponded with the then Minister for Arts, Heritage and the Gaeltacht to make a submission, but no submission was received. 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 8(a)(i) provides that a public authority shall not make available environmental information in accordance with article 7 where disclosure of the information 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

Article 8(a)(ii) provides that a public authority shall not make available environmental information in accordance with article 7 where 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,

Article 9(1)(c) provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.

Article 9(2)(d) provides that a public authority may refuse to make available environmental information where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure.

Articles 8 and 9 are subject to article 10(3), which provides that a public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.

The Appellant's position

The appellant argued that there is a strong public interest in public access to the requested information because of the status of the area as a UNESCO World Heritage Site containing sites of archaeological, historical and ecological importance which are fragile and vulnerable to disturbance. He said that concerns had been expressed by, among others, senior OPW staff, and the head of the OPW's Guiding Service on Skellig Michael. He said that UNESCO had asked to be notified in advance of any future filming on the Skelligs, so that it could provide advice. He argued that, in this context, there is a strong argument that as much information as possible should be released on any proposal to film before the filming takes place, so that the public (both in Ireland and around the world) could be informed. He said that:

"If the information is released only after the filming is...