Damien McCallig and The Department of Communications, Climate Action and Environment

• Case Number: CEI/15/0032
• Decision Date: 27 October 2016
• Issuer: Department of Communications, Climate Action and Environment
• Applied Rules: Art.8(a)(iv) Art.10(3), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Damien McCallig and The Department of Communications, Climate Action and Environment

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0032

Published on 27 October 2016

1. Background
2. Scope of Review
3. Relevant AIE provisions
4. Analysis and Findings
5. Decision
6. Appeal to the High Court

Background

Under Directive 2009/28/EC (the "Renewable Energy Directive") Ireland has a binding national target for renewable energy consumption of 16% in 2020. As required under this Directive, Ireland adopted a national renewable energy action plan (NREAP) which sets out the approach to the achievement of these targets. The NREAP requires the further exploitation of Ireland's wind-energy capacity. Wind energy development is guided by the 2006 Wind Energy Development Guidelines.

The Department of Housing, Planning, Community and Local Government (which was then the Department of the Environment, Community and Local Government) published draft revised guidelines to the noise, setback distance and shadow flicker aspects of the 2006 Guidelines in December 2013. To inform this process, it conducted a public consultation process which received 7,500 submissions. It is now working on finalising revised guidelines in close cooperation with the Department (which was previously called the Department of Communications, Energy and Natural Resources).

On 26 August 2015 the appellant submitted an AIE request to the Department. He asked for certain information in a bullet-pointed list, shown here for ease of reference as a numbered list:

1. Modelling, analysis and related reports, carried out on Ireland's land area and the power generating potential from wind energy projects on those areas. In particular I am seeking access to the outcomes of the modelling under various setback and turbine height scenarios (for the State, as a whole, and by local authority area if available);

2. Information relating to the minimum turbine size and setback distances required to meet Ireland's renewable energy targets; and

3. Information relating to minimum turbine size and setback distances required to provide for, what the department would consider, commercially feasible wind energy development in Ireland.

On 21 September 2015, the Department informed the appellant that it held 7 records within the scope of the request and refused access to all of this information.

On 17 October 2015 the appellant requested an internal review. On 11 November 2015 the Department affirmed its original decision, and the appellant appealed to this Office on 22 November 2015.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review the Department'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 and by 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).

Relevant AIE provisions

Article 8(a)(iv) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts with respect to exempt records within the meaning of those Acts).

Article 10(1) provides that, notwithstanding article 8, a request for environmental information shall not be refused where the request relates to information on emissions into the environment.

Article 10(3) provides that a public authority shall weigh the public interest served by disclosure against the interest served by refusal.

The information at issue

The Department acknowledged holding 7 relevant records. I examined these records in the light of the AIE request and found that the information which they contain relates to part 1 of the request. None of it relates to parts 2 or 3. All of the records were held when the AIE request was made. The records contain the inputs and outputs of various hypothetical modelling scenarios. There is no reason to believe that these scenarios were the only ones modelled, since there might have been further modelling carried out since the date of the AIE request. However, I am satisfied that these records constitute all of the records, within the scope of the request, which were held by or for the Department when the AIE request was made.

The Department's position

In its original decision, the Department explained that it was working with the (then) Department of the Environment, Community and Local Government in a process which is intended to lead to the adoption of revised guidelines to the noise, setback distance and shadow flicker aspects of the 2006 Wind Energy Development Guidelines.

The Department maintains that it is "still in the deliberative process" and the modelling records are being used to inform the decision-making process. It said that:

"This is a very technical area and engagement between the two Departments is ongoing".

It maintains that refusal on the ground of article 8(a)(iv) is justified since disclosure of the information would adversely affect the confidentiality of its proceedings, which, it argued, is protected by section 29 of the Freedom of Information (FOI) Act 2014. It maintains that refusal on this ground is justified following the application of a public interest test. It said that it had "weighed the public interest served by disclosure against the interest served by refusal", but it did not specify all of the public interests which it had identified.

The Department maintains that the requested information does not provide information on emissions into the environment, but did not provide details of how it made this determination.

My investigator sought several clarifications from the Department. The Department confirmed that its Minister is not the lead decision-maker on the revised Guidelines. The "deliberative process" in which it is engaged is therefore, essentially, the process of the Minister for Communications, Climate-Action and Environment deciding on his view on revised Guidelines. The Department also confirmed that none of the modelling data could be said to be obsolete. It said that:

"The modelling exercises were preceded by 2 extensive public consultations... (which) elicited a very significant number of varied responses from the public...the process of finalisation of the Guidelines remains ongoing."

"Disclosure would be contrary to the public interest because deliberations are not complete, because the modelling outputs would not inform or provide clarity to the public and because it would interfere with the decision-making process."

"There is a high risk that (disclosure) would cause confusion in the public mind."

"This Department considers that releasing the modelling results could pre-empt decision-making by the two Ministers."

It argued that disclosure could prejudice investment in the wind energy sector, damage that sector, and would negatively impact on Ireland's ability to meet its 2020 renewable energy targets. It argued that release would potentially contribute to increasing the cost of compliance.

It emphasised that there are sensitive issues still at the level of negotiation between Government Ministers and Departments which will ultimately require a Government Decision. It argued that for all of these reasons, disclosure would not be in the public interest.

The appellant's position

The appellant questioned whether the Department is still in the deliberative process. He argued that even if the Department was still in the deliberative process, "merely forming part of an incomplete process is not enough to warrant refusal under the AIE Regulations nor the FOI Act". Furthermore, he argued, no evidence has been provided by the Department that release of the information would adversely affect anything.

The appellant challenged the Department's reliance on section 29 of the FOI Act. He stated that the FOI Act clearly exempts (from protection) "factual information" which is defined as including "information of a statistical, financial, econometric or empirical nature, together with any analysis thereof". He stated that the 3 elements of his request fall into this category of exemption under section 29(2).

The appellant also argued that it is clear from his request that article 10(1) applies in this instance, as the information requested relates to emissions, both in relation to the reduction of emissions into the environment (Ireland's wind energy potential, guidelines for planning and spatial modelling) and emissions from wind energy development such as noise and shadow flicker.

He said that that information provided by the Department showed that the withheld documents relate to the wind energy planning guidelines which will propose more stringent day and night noise limits for future wind energy developments. He argued that since I have previously found that noise is an emission, this is another reasons why his request relates to emissions for the purposes of article 10(1).

He argued that his request clearly relates to information...