Gerard Frawley and Meath County Council

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0035
• Decision Date: 22 May 2017
• Issuer: Meath County Council
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007

Gerard Frawley and Meath County Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0035

Published on 22 May 2017

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

Background

The AIE Request

On 10 June 2016, the appellant submitted an AIE request to the Council, asking for:

1. The number of animals killed daily at the Dunbia Slane plant.

2. The number of animals killed annually at the Dunbia Slane plant over the last 5 years.

On 5 July 2016, the Council refused the request because it did not hold the requested information.

On 25 July 2016, the appellant requested an internal review of that decision, arguing that the requested information was “within the procurement of” the Council.

On 5 August 2016, the Council affirmed the decision to refuse the request, for the same reason, and without engaging with the appellant’s argument that the information was “within its procurement”.

The appellant appealed to my Office.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review the Council’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 Council to make environmental information available to the appellant.

My investigator notified the Company of the case but received no response. In conducting my review I took account of the submissions made by the appellant and by the Council. 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 provisions of the AIE Regulations

Article 7(1) provides that a public authority shall, notwithstanding any other statutory provision and subject only to the AIE Regulations, make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.

Article 3 defines what “held by” or “held for” mean. It provides that:

“environmental information held by a public authority” means environmental information in the possession of a public authority that has been produced or received by that authority;

“environmental information held for a public authority” means environmental information that is physically held by a natural or legal person on behalf of that authority.

The appellant’s position on the Council’s decision

In his request to the Council for an internal review of its decision, the appellant argued that Local Authorities are required by the Abattoirs Act to provide ante and post mortem inspections of all animals that are slaughtered for human consumption in abattoirs licensed under the Act and located within the local authority’s functional area. He added that the Dunbia plant is located in the Council’s functional area and the necessary inspections are carried out by 1x part-time and 2 x full-time Council veterinary officers under the supervision of the Council’s full-time veterinary officer. Accordingly, he argued, the information is within the procurement of the Council.

The Council’s position on its decision

In a submission to my Office the Council explained that:

“Meath County Council operates under a Service Level Agreement with the Food Safety Authority of Ireland. Under this agreement the County Veterinary Officer (CVO) provides a veterinary inspection service for the enforcement of food legislation and protection of consumer health and interest. This CVO carries out inspections at 6 specified abattoirs and a large number of other smaller food business operators in the county in line with this Service Level Agreement, but not the larger plants in Meath like Dunbia (the subject of this AIE), which fall under the remit of officials from the DAFM.”

The Council confirmed that:

“Meath County Council’s Veterinary Officer has no role in inspections at the Dunbia Plant and thus Meath County Council would hold no veterinary related records for this plant. Inspections at this plant fall under the remit of the Department of Agriculture, Food and Marine.”

Analysis

Is the requested information environmental information?

Although the Council did not argue that the requested information is not environmental information, I decided that this was something which I should establish before proceeding.

I am satisfied that the operation of an abattoir is an activity which is likely to affect elements of the environment, in that, for example, it produces waste products which must be disposed of in accordance with an Integrated Pollution Prevention and Control licence.

There is also reason to regard the operation of this particular plant as actually affecting (as distinct from merely being “likely” to affect) at least one element of the environment, i.e. water. RTÉ reported on 15 March 2016 that the management of the Company admitted responsibility for discharging “factory process effluent” into a local stream, colouring it blood-red. That report is available at https://www.rte...