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

• Case Number: CEI/13/0001
• Decision Date: 21 July 2015
• Issuer: Department of Agriculture, Food and the Marine
• Applied Rules: Art.7(5) Art.10(1), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

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

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/13/0001

Published on 21 July 2015

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment) (AIE) Regulations 2007 to 2014 (the Regulations)

Appellant: Friends of the Irish Environment, Kilcatherine, Eyeries, Co Cork.

Public Authority: Department of Agriculture, Food and the Marine (the Department)

Issue: Whether the Department was justified in refusing the appellant's request for information relating to fin fish aquaculture sites in Kenmare Bay and Bantry Bay.

Summary of Commissioner's Decision:

In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the Department in this case. He varied the decision of the Department and found that it was justified in refusing the request on the ground that the information sought is not "environmental information held for a public authority" within the meaning of the Regulations, except in so far as records of inspections carried out by Department officials are held by the Department. He found that only parts of the inspection reports fell to be considered in this appeal and that only certain sections of those reports, and associated attachments, are within the scope of the request. He further found that the information in these sections is environmental information and that it relates to emissions so that Article 10(1) applies. Therefore, he directed the release of certain specified information. He further found that Article 7(5) of the Regulations applied to any other information which the appellant contends is within the scope of the request.

Background

In its request of 1 November 2012, the appellant sought the following information for all fin fish aquaculture sites in Kenmare Bay and Bantry Bay:

1. Feeding of SLICE including quantities and data;

2. Incidence of disease and their treatments including dates, the name of the chemical, amounts used per treatment, disposal methods and locations;

3. The results of testing following treatment for compliance with the EC(Control of Dangerous Substances in Aquaculture) Regulations, 2008 including dates and locations.

The appellant also stated that it was seeking the raw data on these emissions, not summary reports.

The appellant had previously sought this information from the Department in May 2012. At that time the Department stated in its decision that it "had decided to grant your request" and went on to inform the applicant that the information sought was maintained by the individual operators in accordance with the relevant statutory provisions.

In its decision on the request of 1 November 2012, the Department stated that the May 2012 decision "still pertains". The appellant sought an internal review of the Department's decision on 12 December 2012, on the basis that, in its view, the information is in effect held by the Department and must be made available by the Department under the Regulations. In its internal review decision of 14 January 2013, the Department stated that "the records in question are not held by the Department", but did not alter the original decision.

The appellant submitted an appeal to my Office on 6 February 2013. In a submission, the Department said that it had "effectively refused" the request. It also stated that it had contacted the Marine Institute (MI) and the veterinary inspectorate (VI) of the Department and both had indicated that the information sought was not held by them.

Ms. Brenda Lynch, Investigator informed the appellant of her view by letter of 1 May 2014 that, while the information sought is created and held by individual operators so as to comply with statutory requirements relating to food safety and must be made available for inspection, it is not held "on behalf of" the Department and so it not held by the Department. The appellant responded with a submission arguing that the request had been granted and that the information was held by the Department. After further consideration of the appeal and the scope of the request, this Office asked the Department to clarify whether any inspections had been carried out by Department officials under the relevant legislation, and if so, whether copies of any records had been taken or any other relevant records existed, as this had not been addressed in the Department's submissions. In its response in July 2014, the Department said that it had again contacted the MI and the VI, and that the VI had found no evidence of the existence of any relevant inspection records. However, the MI had now identified a number of records relevant to Item 2 of the request which had been overlooked earlier.

The Department argued that the exceptions provided for at Articles 8(a)(ii) and 9(1)(c) of the Regulations applied to the 21 records which had been identified. Copies of the Department's consultation with the two affected third parties, and the responses received were also provided. There followed a series of contacts between the Investigator and the Department, including a meeting on 18 June 2015, in order to clarify the situation since the Department submissions had not adequately addressed the requirements of the Regulations. At the meeting, the issue arose as to whether I have jurisdiction to consider the records provided by the MI, via the Department, in circumstances where the information is held by a separate public authority.

I regret the delay that arose in dealing with this appeal, which was due both to resource issues and also to the Department's handling of the request falling short of what might reasonably be expected. A further issue which arose was that the records identified related to the business affairs of private fish farm operators. Unlike the FOI Act, the AIE Regulations make no specific provision for notifying third parties of an appeal. Nevertheless, in carrying out my functions, I must have regard to the requirements of Constitutional and natural justice. I also note that, under Article 13(1) of the Regulations, any person affected by my decision has the right of appeal to the High Court, which implicitly acknowledges that the rights of an affected third party must be taken into account in carrying out a review.

In view of the protracted engagement on this appeal with the Department and its failure to adequately address some of the queries raised by my Office, I have decided to bring this appeal to a conclusion now by way of a formal, binding decision. In so doing, I have taken account of the submissions of the appellant and the public authority and the provisions of the Regulations. I have also had regard to the position of the third parties as set out in their responses to the Department and to the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations[the Minister's Guidance]; Directive 2003/4/EC [the Directive], upon which the AIE Regulations are based; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide] relating to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which is more commonly known as the Aarhus Convention.

Scope of Review

Initially in this review, the question before me was whether the information the subject of the appellant's request is "environmental information held for a public authority" within the meaning of the AIE Regulations. However, given the sequence of events outlined above, I must also address whether the Department's refusal of the records containing information identified by it as being within the scope of the request was justified. In so doing, I must address the following issues:

• Do I have jurisdiction to consider the records identified and provided by the Department in this appeal?
• Are the records encompassed by the terms of the request?
• Is the information in the records environmental information?

On examination, it emerged that three of the records identified were created after the request of 1 November 2012 was received and are therefore outside scope of the review. For the avoidance of doubt, the records in respect of which the above questions must be addressed are records 1-4, 6, and 8-20 on the schedule provided by the Department.

Preliminary Matters

Decision of the Department

In its response of May 2014 to my Office, the appellant continued to be of the view that the Department granted its request and that the matter at issue was it being provided with the necessary procedures and assistance to obtain the information sought. Despite the Department stating in its decision of May 2012 that it had granted the request and that the information sought was held by the individual operators, I am satisfied that the Department's decision was, in fact, a refusal of the request on the grounds of Article 7(5) of the Regulations.

Article 7(7) provisions

The appellant identified Article 7(7) of the Regulations in support of its position. Article 7(7) provides that where a request is made to a public authority which could reasonably be regarded as a request for environmental information, but is not made in accordance with Article 6(1), the public authority shall inform the applicant of his or her rights of access to environmental information and the procedures by which that right can be exercised, and offer assistance to the applicant in this regard. I am satisfied that this Article...