Friends of the Irish Environment Limited and the Department of Agriculture, Food and the Marine

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0004
• Decision Date: 16 January 2017
• Issuer: Department of Agriculture, Food and the Marine
• Applied Rules: Art.9(2)(c) Art.9(2)(d), European Communities (Access to Information on the Environment) Regulations, 2007

Friends of the Irish Environment Limited and the Department of Agriculture, Food and the Marine

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0004

Published on 16 January 2017

Background

On 23 September 2015 the appellant submitted an AIE request to the Department. The request was worded as follows:

We submitted a request for all records relating to the storm damage which occurred on 1 February 2014 at Murphy's salmon farm at Gerahies, Bantry Bay, County Cork. The request was dated 12 March 2014 and was refused. We note the decision of the Information Commissioner of 13 July 2015 and your subsequent release of those records. We are by this request seeking any records created since 13 March 2014 to date on this issue. These comprise but are not restricted to:

• Copies of the relevant scientific and technical and veterinary reports held by the Minister's Department relating to the storm damage at Murphy's salmon farm at Gerahies, Bantry Bay, including interim draft reports of April and July 2014 and the final report referred to in the IC Decision of July 2015 as due in August 2014.
• All drafts of parliamentary replies relating to the aforesaid incident.
• Any documentation concerning these reports or concerning this incident, including scientific records or site visits, observations and survey logs of inspection themselves, photographs, and any related records, including emails, records of meeting or phone calls.

Notes on the request:

• The numbering shown above was not included in the original request and was added, for ease of reference, by my Office.
• The references to "the Information Commissioner" and to "the IC" appear to have been intended to have been references to the Commissioner for Environmental Information. Although I hold office as both the Information Commissioner and the Commissioner for Environmental Information, they are legally separate offices.
• The "decision" referred to is my decision in case CEI/14/0007 (which is available on my website: www.ocei.ie).

The Department notified the appellant that it required an extension of one month in which to respond to the request. It subsequently refused the request on 16 November 2015. On 5 December 2015 the appellant requested an internal review of this decision and on 5 January 2016 the Department gave notice of its decision to affirm refusal. The appellant appealed to this Office on 4 February 2016.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is firstly to review the Department's internal review decision and to affirm, annul or vary it. If I find that refusal was not justified for the reasons given in that decision, my role is to decide whether it would be appropriate for me to require the Department to make environmental information available to the appellant.

In conducting my review I took account of the submissions made by the appellant, the fish-farm operator (the Company) and 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)(ii) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect 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)(b) provides that a public authority may refuse to make environmental information available where disclosure of the information requested would adversely affect the course of justice.

Article 9(2)(a) provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought.

Article 9(2)(c) provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data.

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

Article 10(3) 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.

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.

Review

The decision to be reviewed

The Department refused the request on the grounds of article 9(2)(c) (because the request concerns material in the course of completion) and article 9(2)(d) (because the request concerns the internal communications of public authorities).

The Appellant's position on the decision

The appellant argued that in the earlier appeal-case CEI/14/0007 I found that the Department was not justified in refusing access to information on the same grounds relied on by the Department in this case. The appellant argued that this request is "for exactly the same records", in that they differ only insofar as they were prepared in a later time period.

The appellant submitted that:

"We are at a loss as to how to deal with a Department that pays no heed to your decisions requiring a further appeal for reports and supporting information which have already been identified as not exempt from release by your order of 13 July 2015.

So we make this appeal against the Department's refusal under protest as we believe the actions of the Department of Agriculture, Food and Marine in refusing our request breaches our rights under legislation governing Access to Information on the Environment and under the Aarhus Convention in not accepting the ruling of your office as final and binding".

The Department's position on its decision

In a submission to this Office the Department argued that disclosure of elements of a report which is being prepared for the Minister would be premature and would unduly constrain the Minister in respect of any action which he might deem appropriate. It argued that the documents in question form part of an overall process and that these and other elements must be treated as one. It argued that the placing of elements of this report in the public arena in advance of the Minister's decision might constitute a breach of the licence-holder's right to natural justice. It argued that any person aggrieved by the outcome of the report could point to the premature release of material as prejudicial to their interests and this could give rise to a successful legal challenge by any such person.

The Department argued that the public interest is best served by allowing the Minister to consider the matter free of any allegation of bias or prejudice, and in ensuring that any person affected by any decision of the Minister is afforded the full protection of natural justice.

Analysis of the justification of the decision

Contrary to the appellant's assertion, the Department accepted my decision on the earlier appeal-case CEI/14/0007 as final and binding in that case. In the current case, it relied on the same argument which it made in that earlier case, which is that "the documents in question form part of an overall process and that these and other elements must be treated as one". Consequently, the Department did not consider the records individually and determine that some or all of them should be refused. This approach was wrong. Refusal to provide access to environmental information, particularly on grounds based on the content of the records or the consequences of their release, can only be justified following consideration of the contents of each individual record.

The Department provided my Office with copies of what it regarded as its relevant records. Some of these could not be described as either "internal communications" or as "material in the course of completion". For example, they include:

• A reply given in the Dáil to a parliamentary question.
• A printout of an online-newspaper article.
• A report from the Marine Institute to the Department.

All of the above are external communications. I understand that the Department took the view that when documents such as those listed are held in records as attachments to internal emails, the email and attachment together form an "internal communication". While this might be literally correct, it is also the case that such attachments have an independent existence of their own, as records held by the Department. Even if such records are, at some stage, internally communicated, access to the environmental information within them ought not to be refused on the grounds of internal communications.

Similarly, the three records listed are fully completed records in their own right: access to the environmental information within them therefore ought not to be refused on the grounds of "material in the course of completion". Article 10(4) provides that grounds for refusal must be interpreted on a restrictive basis...