Damien McCallig and The Department of Housing, Planning, Community and Local Government

• Case Number: Case CEI/15/0027
• Decision Date: 27 October 2016
• Issuer: The Department of Housing, Planning, Community and Local Government
• 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 Housing, Planning, Community and Local Government

From Office of the Commissioner for Environmental Information (OCEI)

Case number: Case CEI/15/0027

Published on 27 October 2016

1. Background
2. Relevant AIE provisions
3. Analysis and Findings
4. Decision

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 (previously the Department of the Environment, Community and Local Government) published draft revisions to the noise, setback distance and shadow flicker aspects of the 2006 Guidelines in December 2013. This was followed by a public consultation process which received 7,500 submissions. The Department is now working on finalising the revised guidelines in close cooperation with the Department of Communications, Climate Action and Environment (DCCAE) (formerly the Department of Communications, Energy and Natural Resources (DCENR)).

On 30 July 2015, the appellant submitted an AIE request to the Department. He asked for certain information, shown here for ease of reference in 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 28 August 2015, the Department informed the appellant that it held five records within the scope of the request and refused access to all of this information.

On 8 September 2015, the appellant requested an internal review. On 8 October 2015, the Department affirmed its original decision and the appellant appealed to this Office on 17 October 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.

Article 10(4) provides that the grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.

The information at issue

The Department says that it conducted a thorough search for relevant records and identified 5 records. It provided details of how it had conducted this search and confirmed in writing that that it holds no further relevant records. I accept this statement. The Department provided my Office with copies of the 5 records. I examined these and found that records 1, 3, 4 and 5 relate to part 1 of the request, while record 2 relates to part 2 of the request. I found no information relating to part 3 of the request in the records.

The Department's position

The Department maintains that it is still in the deliberative process of deciding on finalised guidelines. 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 remains justified following the application of a public interest test under article 10(3).

The Department also maintains that the requested information does not provide information on emissions into the environment within the meaning of article 10(1) of the AIE Regulations, because such information as it contains on emissions is derived from hypothetical modelling scenarios rather than from actual emissions.

The Department argued that, since its deliberations are not complete, release of the information would not serve to inform, or provide clarity to, the public, and would interfere with its own final deliberations by leading to undue intrusion into that process.

The appellant's position

The appellant questioned whether the Department is still in the deliberative process. He said that the then Minister for the Environment, Mr. Alan Kelly T.D., publically announced in October 2015 that his Department had concluded deliberations on the information requested. The appellant provided the following link to a local radio recording in support his claim: http://www.midlandsradio.fm/news/kelly-local-clip-mb . Unfortunately, my investigator was unable to access this clip to confirm its contents.

The appellant argued that even if the Department was still in the deliberative process, "merely forming part of 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 to include "information of a statistical, financial, econometric or empirical nature, together with any analysis thereof". He stated that the three elements of his request fall into this category of exemption under Section 29(2) and in part to the other elements of this section's exemptions.

The appellant also argued that it is clear from his request that article 10(1) applies in this instance, as the requested information 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 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 reason why his request relates to emissions for the purposes of article 10(1).

He argued that his request clearly relates to information on Ireland's ability to meet its renewable energy targets, i.e. by means of reduction in carbon dioxide and other harmful emissions. Furthermore, he argued, electricity itself, and its generation, is an emission for the purposes of the AIE regulations.

The appellant argued that his claim that his request relates to emissions is supported by the judgment of the General Court of the Court of Justice of the European Union in Case T-545/11 (Stichting Greenpeace Nederland-v-Pesticide Action Network Europe), in which the Court held that, in order for environmental information to constitute information on emissions, "it suffices that the information requested relates in a sufficiently direct manner to emissions into the environment". He argued that it is clear that, given the purpose and scope of the review of the wind energy guidelines and the obvious content of the information requested, the requested information relates in a sufficiently direct manner to emissions into the environment and it must therefore be released.

The appellant stated that he was unable to ascertain, from the Department's refusal-decisions, the public interests which were weighed-up when those decisions were made. He said that there is no evidence that the required restrictive nature filter under article 10(4) was applied. He added that:

"It would be astonishing if the restricted public interest in non-disclosure could trump significant public interests in disclosure in this instance, such as:

1. The public interest in individuals being able to exercise their rights...