Marine Terminals Limited and Dublin City Council

• Case Number: CEI/14/0013
• Decision Date: 26 July 2015
• Issuer: Dublin City Council
• Applied Rules: Art.8(a)(i) Art.8(a)(ii), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Marine Terminals Limited and Dublin City Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0013

Published on 26 July 2015

1. Summary of Commissioner's Decision:
2. Background
3. Scope of Review
4. Analysis and Findings
5. Decision
6. Appeal to the High Court

Appeal to the Commissioner for Environmental Information

European Communities (Access to Information on the Environment)(AIE) Regulations 2007 to 2011

Appellant: Marine Terminals Limited, care of McCann Fitzgerald Solicitors, Riverside One, Sir John Rogerson's Quay, Dublin 2

Public Authority: Dublin City Council, Civic Offices, Wood Quay, Dublin 8 (the Council)

Issue: Whether the Council was justified in refusing the appellant's request for access to environmental information relating to planning enforcement correspondence on the grounds of protecting the confidentiality of personal information.

Summary of Commissioner's Decision:

The Commissioner found that the Council's decision was justified under Article 8 of the Regulations. While the Council relied on Article 8(a)(i) to justify refusal, the Commissioner found that refusal to grant access was also justified under Article 8(a)(ii). Accordingly the Commissioner affirmed the Council's decision, while partly varying the grounds of justification.

Background

The Council issued a warning letter to the appellant company, on 27 March 2014, with regard to an alleged unauthorised development at the appellant's premises at Ringsend, Dublin. The appellant wrote to the Council on 13 June 2014, citing the Freedom of Information Act and the AIE Regulations. The appellant requested access to: the Council's enforcement file on the matter; all correspondence (including digital correspondence) between local residents and the Council relating to whether enforcement action should be taken against the appellant; and all records of complaints from local residents relating to noise and planning issues at the appellant's premises.

On 16 July 2014, the Council granted access to some of the information it held, but refused access to other information. The reason given for this part-refusal was "release of such information could reveal the identity of the supplier of information to the public body which was given in confidence".

The appellant requested an internal review of the Council's decision on 25 July 2015. It noted that the original decision by the Council had not specified a legal basis (i.e. by means of reference to a specific article in the Regulations) for its part-refusal of the original request.

The Council issued its internal review decision on 18 August 2014. It affirmed the original decision and clarified the grounds for part-refusal, citing Article 8(a)(i) of the Regulations as justification.

The appellant appealed the Council's internal review decision to this Office on 18 September 2014.

Scope of Review

Under Article 12 of the Regulations, my sole role is to review the Council's internal review decision and to affirm, vary or annul it.

I take account of the submissions of the appellant, the Council and third parties identified in the records at issue. I have regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations (the Department's Guidance document); Directive 2003/4/EC, upon which the Regulations are based; the 1998 UNECE 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) (the Aarhus Guide).

The information at issue in this review was provided to me by the Council, in records numbered and described as follows:

• Record 4: Letter from solicitors dated 27 February 2014.
• Record 5: Copy reply to solicitors dated 3 March 2014.
• Record 6: Copy sworn affidavit from complainant.

I am satisfied that all of the above records contain environmental information in the meaning of the Regulations and this is not disputed by the Council. In this review I have to determine whether the Council was justified, in its internal review decision, in refusing access to information contained in all or any of these records on the grounds of Article 8(a)(i).

Statutory provisions

The Regulations provide for mandatory refusal (subject to Article 10) in circumstances covered by Article 8.

Article 8(a)(i) provides that refusal is mandatory "where disclosure would adversely affect the confidentiality of personal information relating to a natural person who had not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law".

Article 8(a)(ii) provides that refusal is mandatory "where disclosure would adversely affect the interests of any person who voluntarily and without being under, or capable of being put under, an obligation to do so, supplied the information requested, unless that person had consented to the release of that information".

Article 10(1) provides that: "notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment".

Article 10(3) provides that "the 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(5) provides that nothing in Article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which Article 8 or 9 relates, may be separated from such information.

Appellant's arguments

The appellant's first argument is that the effect of Article 10(1) is that refusal to provide access cannot be justified, because the request relates to emissions into the environment.

In relation to confidentiality, the appellant argues that one of the documents withheld is an affidavit which was filed in open court. It argues that in these circumstances the provision of access to this document could not "adversely affect the confidentiality of personal information" since the information is no longer confidential information.

The appellant further argues that even if it is found that the disclosure of personal information must be withheld (on the grounds that the confidentiality of personal information would be adversely affected), Article 10(5) of the Regulations requires that such information should be separated or redacted from the environmental information, which should then be made available.

Finally, the appellant argues that the Council failed to comply with the Regulations by not giving reasons for the original decision. It has not, however, argued that this failure invalidated the original decision. In any case, this review concerns the internal review decision only.

The Council's position

The Council relies on Article 8(a)(i) as justification for refusal. It maintains that planning enforcement complainants have an expectation of confidentiality. It states that there can be no doubt that there was an expectation of confidentiality in this particular case, because the wording of the official complaint form states that personal information "will be kept confidential". It argues that full-disclosure in this instance would be highly likely to prejudice the giving of similar information in the future, and that such an outcome would negatively affect planning compliance. The Council did not address the issue of emissions.

Analysis and Findings

Emissions

The appellant specifically requested information relating to "noise emissions" and to complaints about noise. The Department's Guidance document states that "emissions should be construed as discharges of whatever kind to all environmental media". The question arises as to whether "noise-making" constitutes an "emission into the environment", when it does not discharge or release any substance into the atmosphere. The Aarhus Guide states, at page 88 under the heading "Defining Emissions", that the term "emission" has been defined in the Industrial Emissions Directive (2010/75/EU) as a "direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into air, water or land". Similarly, the Environmental Noise Directive (2002/49/EC) recognises noise as an emission. I conclude from the above that noise-making constitutes an emission into the environment for the purposes of the Regulations.

The next issue for consideration is the meaning of Article 10(1) of the Regulations. Under one interpretation, it could be understood to mean that [subject to Article 9 but not to sub-article 9(1)(c)] once a request relates to emissions, access to all of the requested environmental information must be provided even when that information does not contain information on emissions. If this argument were correct, any request under AIE legislation would only have to include a reference to alleged emissions and full disclosure would have to follow [subject to Article 9 but not to sub-article 9(1)(c)]. It is difficult to think of any human activity which would not involve some kind of emission; for example, the exhalation of carbon dioxide or the making of even the slightest sound. Such an interpretation could lead to absurdity and to the abuse of the legislation.

The Regulations have to be interpreted in light of the Directive. The Supreme Court approved of this approach in its judgment in NAMA -v- Commissioner for...