Dr Fred Logue on behalf of FP Logue Solicitors and the Department of the Environment, Community and Local Government

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0025
• Decision Date: 06 July 2017
• Issuer: Department of the Environment, Community and Local Government
• Applied Rules: Art.3(1) Art.7(3), European Communities (Access to Information on the Environment) Regulations, 2007

Dr Fred Logue on behalf of FP Logue Solicitors and the Department of the Environment, Community and Local Government

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0025

Published on 6 July 2017

1. Background
2. Scope of review
3. Analysis and findings
4. Decision
5. Appeal to the High Court

Background

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the Aarhus Convention) was signed on 25 June 1998. The Convention has been ratified by the European Union and Ireland. The Aarhus Convention is implemented in European Union law by a number of legislative provisions, including Directive 2003/4/EC on public access to environmental information (implemented in Ireland by the AIE Regulations).

Article 15 of the Aarhus Convention provides for a compliance review mechanism. In October 2002, the Meeting of the Parties to the Aarhus Convention adopted decision I/7 on review of compliance, establishing the Aarhus Convention Compliance Committee (ACCC). In accordance with paragraphs 18 to 24 of the annex to decision I/7, communications may be brought before the ACCC by one or more members of the public concerning any Party's compliance with the Convention. The ACCC has published its procedures for processing such communications.

On 17 May 2016, the appellant made a request to the Department for access to "Details of the procedures used by Ireland for its participation in proceedings before the Aarhus Convention Compliance Committee. The procedures to include instructions to officials responsible for drafting documents and gathering information, procedures for consultations with relevant public authorities, engagement of lawyers, drafting of submissions, internal approval in the Department of the Environment and/or other public authorities and procedures for political approval by relevant Ministers and/or the Cabinet. This may be documented in a procedures manual for example."

In a decision of 15 June 2016, the Department refused the appellant's request on the basis that the information requested did not fall within the definition of "environmental information" as set out in article 3(1) of the AIE Regulations. The appellant disputed the Department's decision, and requested an internal review pursuant to article 11 of the AIE Regulations. In an internal review decision of 13 July 2016, the Department affirmed its earlier decision, and commented that the information requested was limited to logistics and procedural matters.

Scope of review

Pursuant to article 12(5) of the AIE Regulations, my role is to review the Department's internal review decision, and to affirm, annul or vary that decision. In this instance, the appellant's request was refused solely on the basis that the information sought was not environmental information within the definition set out in article 3(1). I note that, in line with my decision in the case of Gavin Sheridan and Dublin City Council (CEI/12/0004), it is my practice to review as a preliminary matter whether particular information is "environmental information". Accordingly, the scope of my review in this case has been limited to the question of whether the information sought constitutes "environmental information" for the purposes of the AIE Regulations.

In making this decision I have had regard to submissions made to my Office by the parties in the course of the appeal. I have also had regard to Guidance for Public Authorities and others on implementation of the Regulation (May 2013) published by the Minister for the Environment, Community and Local Government [the Minister's Guidance], and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

The Department's Position

The Department of Communications, Climate Action and the Environment made a submission to my Office on this appeal, and furnished me with copies of its procedures concerning ACCC communications.

The Department categorised the information held as draft protocols for engagement between public bodies in dealing with communications before the ACCC. The Department submitted that this information does not concern the state of the elements of the environment or factors affecting or likely to affect the elements of the environment, or the matters set out in paragraphs (d), (e), or (f) of the definition of "environmental information" contained in article 3(1) of the AIE Regulations.

The Department considered whether the information sought fell within paragraph (c) of the definition of "environmental information". The Department submitted that the draft protocols are not measures affecting or likely to affect the elements of the environment, notwithstanding their connection to the Aarhus Convention. The Department sought to rely on the decision of the previous Commissioner for Environmental Information in CEI/12/0008 (Ms. Attracta Uí Bhroin and the Department of Arts, Heritage and the Gaeltacht) insofar as the Commissioner accepted in that case "that the AIE Regulations and Directive are measures designed to protect the elements of the environment, but in an indirect and aspirational manner only." The Department submitted that the proceedings of the ACCC are not measures or activities designed to protect the elements of the environment, as they are only remotely linked to the protection of such elements. The Department contended that national protocols relating to the ACCC therefore do not contain information on relevant measures or activities for the purposes of paragraph (c).

The Appellant's Position

In his internal review request to the Department, the appellant contended that the information sought is environmental information since Ireland's participation in ACCC proceedings and Ireland's attendant procedures come within paragraph (c) of the definition of "environmental information", as measures likely to affect the elements or factors referred to in paragraphs (a) and (b). The appellant submitted that recommendations of the ACCC have environmental effects since they directly influence the application of environmental law in Ireland. The appellant submitted that Ireland's participation in ACCC proceedings influences those recommendations.

In a submission to my Office, the appellant contended that the information requested fell within paragraph (c) of the definition of environmental information, and agreed that the information did not fall within the other parts of the definition. The appellant submitted that the procedures fell within the final part of paragraph (c) as information on measures designed to protect the elements of the environment. The measures identified by the appellant in this regard were the Aarhus Convention, and the proceedings of the ACCC.

In contending that the Aarhus Convention and ACCC were measures designed to protect the elements of the environment, the appellant relied on the following two indents of the Preamble to the Aarhus Convention:

"Affirming the need to protect, preserve and improve the state of the environment and to ensure sustainable and environmentally sound development,

Recognizing that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself,"

The appellant brought to my attention Article 1 of the Aarhus Convention, which states the objective of the Convention as follows:

"In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention."

The appellant also submitted that Ireland's participation in the ACCC is a measure designed to protect the elements of the environment for the purposes of paragraph (c) of the...