Kevin A McFadden and Dublin City Council

• Case Number: CEI/15/0006
• Decision Date: 01 November 2016
• Issuer: Dublin City Council
• Applied Rules: Art.3(1) Art.8(a)(iv) Art.9(1)(c), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Kevin A McFadden and Dublin City Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0006

Published on 1 November 2016

Background

Regulation (EC) No 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (The TFS Regulation) governs the transfrontier shipment of waste within, to and from member states. In Ireland, the Waste Management (Shipment of Waste) Regulations 2007 (the Shipment of Waste Regulations) give full effect to the TFS Regulation. Regulation 4 of the Shipment of Waste Regulations designates the Council as the competent authority under article 53 of the TFS Regulations.

Regulation 5 of the European Communities (Shipments of Hazardous Waste exclusively within Ireland) Regulations 2011 designates the Council as competent authority in order to implement article 33 of the TFS Regulation and to give further effect to article 19(2) of Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives.

Regulation 4 of the Waste Management (Registration of Brokers and Dealers) Regulations 2008 (hereinafter the Registration of Brokers and Dealers Regulations) designates the Council as the competent authority for the purposes of article 6 of Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste. In this capacity, the Council is responsible for registration of brokers and dealers engaged in the recovery, disposal and sale of waste.

The above activities are carried out on a national basis through the Council's National Transfrontier Shipments Office (the NTFSO).

In a letter to the Council of 2 November 2014, the appellant requested "all information and records etc. you have on file" relating to Tony Sharkey and Sharkey Waste Recycling Limited (hereinafter SWR). In a decision of 4 December 2014, the Council brought publicly available information to the attention of the appellant, referring to published registers of waste shipments and the register of brokers and dealers. The Council stated that the exception under article 9(1)(c) of the AIE Regulations applied to all other information requested. The appellant sought an internal review on 11 December 2014, and received a decision on 21 January 2015. The internal review decision was made in identical terms to the first decision, and the appellant subsequently appealed the refusal of his request to my office.

Scope of Review

In conducting this review, I considered whether the information held by the Council on SWR is environmental information within the definition set out in article 3(1). I considered whether the exceptions to disclosure under articles 9(1)(c) and 8(a)(iv) apply to the information. I also considered whether the public interest in disclosure of the information outweighed the interests served by refusal of the request.

Directive 2003/4/EC (the Directive) implements the first pillar of the 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"). The Directive is transposed into Irish law by the AIE Regulations. In making this decision, I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (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].

Documents held by the Council

Documents available for inspection by the public:

In its original decisions, the Council notified the appellant that it maintains public registers in respect of waste shipments and a register of brokers and dealers, which could be accessed online at www.dublincity.ie. An Investigator with my Office accessed the Council's website, and found that this statement was inaccurate, as there is no online register of brokers and dealers, and only information on waste shipments made in 2015 is currently available online. The Council subsequently clarified to my Office that it does not provide online access to all of the publicly accessible information it holds on waste shipment matters.

The Council clarified that the following material is publicly available for inspection on request: a register of transfrontier waste shipments of materials listed in Annex III of the TFS Regulation (green listed wastes), a register of notifications of transfrontier waste shipments of materials listed in Annex IV of the TFS Regulation (amber listed wastes containing both hazardous and non-hazardous parts), and a register of brokers and dealers (together with certificates of registration). The Council also publishes on its website the fee structure applicable for persons importing and exporting green and amber listed waste.

I accept that the above information is publicly available. I am satisfied that the public information described is environmental information. I therefore require the Council to make available to the appellant such parts of the three public registers as relate to his request, together with copies of any certificates of registration issued relevant to the request.

Non-public information held by the Council

The Investigator attended at the Council's National Transfrontier Shipments Office to inspect relevant environmental information and the Council provided my Office with copies of relevant information to facilitate my review.

The non-public information held by the Council is as follows:

1. information on prior written notifications for consent to transfrontier shipments, together with documents supporting notifications and database of notifications, which include SWR as a party to the shipment

2. application forms and supporting documents submitted by SWR to the Council in connection with the register of brokers and dealers, and

3. a file concerning inspections of SWR carried out by the Council.

Submissions by the parties

My Office invited the parties to this appeal to make submissions in writing. The appellant was notified of all material issues relevant to this appeal, but did not make a submission.

The Council's Position

In its original decision and at internal review stage, the Council stated that, with the exception of information stated to be available online, all information held on file was considered "commercially sensitive and confidential".

On appeal to my Office, the Council submitted that information on transfers of waste was submitted on a confidential basis, and that a duty of confidence existed in this regard. The Council also submitted that its enforcement role would be adversely affected if information submitted in the course of investigations was disclosed. The Council contended that disclosure of information on inspections could adversely affect the economic interests of persons concerned.

The Third Party's Position

An Investigator with my Office contacted SWR and invited the company to make a submission on the appeal. SWR stated that it was one of a small number of waste operators working in a very competitive market. The company stated that details of tonnage of waste processed and details of commercial relationships with other companies were commercially sensitive. The company suggested that this AIE request was an attempt by its competitors to access commercially sensitive information and to damage its competitive position.

Analysis and Findings

Does the information held fall within the definition of environmental information under article 3(1) of the AIE Regulations

Article 3(1) of the Regulations defines "environmental information" as

"any information in written, visual, aural, electronic or any other material form on --

(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,

(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and

(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);"

The Aarhus Guide remarks that the intention of the drafters when defining "environmental information "was to craft a definition that would be as broad in scope as possible, a fact that should be taken into account in its interpretation."

I consider that details of administrative fees levied by the Council in connection with its activities are incidental to the matters...