Mr A and the Environmental Protection Agency

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0030
• Decision Date: 01 June 2017
• Issuer: Environmental Protection Agency
• Applied Rules: Art.9(2)(a), European Communities (Access to Information on the Environment) Regulations, 2007

Mr A and the Environmental Protection Agency

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0030

Published on 1 June 2017

Background

The AIE Request

Enva Ireland Limited trades under the name "Enva" and operates a waste management facility at Portlaoise, County Laois.

On 5 June 2016 the appellant submitted an AIE request to the EPA seeking:

"All records in the possession of the EPA that relate directly or indirectly to the Enva plant in Portlaoise from 1 December 2015 to present.

This includes all documents, internal and external correspondence, emails, handwritten notes, minutes of meetings, notes of phone calls, memos, reports, including all records relating to media reporting on the Enva plant."

In an email sent to the appellant on 13 June 2016, the EPA said that the request, as worded, would fall to be refused under article 9(2)(a), which provides that a request may be refused when it is manifestly unreasonable having regard to the volume or range of information sought. The EPA suggested that the request might be reworded so as to narrow its scope, and proposed the following wording:

"All records related to air emissions and nuisance odours in the possession of the EPA that relate to the Enva plant in Portlaoise from 1 December 2015 to present."

The EPA added that the appellant might wish to reformulate the request in some other way and it offered to be available to discuss the matter by telephone.

The appellant replied on 27 June 2016, respectfully declining the invitation, and adding that the request was both specific and time-constrained.

On 5 July 2016 the EPA gave notification of its decision to refuse the request on the ground of article 9(2)(a) because of the volume and range on information sought. It also provided information as to how some types of information which it holds can be accessed at its offices or on its website.

The following day, the appellant requested an internal review of that decision. The EPA replied on 3 August 2016, affirming the original refusal decision. The Agency explained that it had estimated that processing the request would take in excess of 130 hours.

The appellant appealed to my Office on 15 August 2016.

Scope of Review

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

In conducting my review I took account of the submissions made by the appellant and the EPA. 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 (The Aarhus Guide)(Second edition, June 2014).

The decision under review

The decision refused the request because, "as it involves such a volume and range of information, it falls to be refused under article 9(2)(a)".

Article 9(2)(a)

This 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.

I understand that the purpose of article 9(2)(a) is to ensure that meeting AIE requests does not unreasonably interfere with the operations of public authorities. There is, unfortunately, a dearth of authoritative guidance on what 'manifestly unreasonable' means in this context. The Oxford English dictionary defines "manifestly" as "clear or obvious to the eye or mind". Since article 9(2)(a) allows a public authority this discretion to refuse a request, this suggests that it is what is manifestly obvious to the public authority that primarily matters.

The Aarhus Guide says at page 84 that:

"Although the Convention does not give direct guidance on how to define "manifestly unreasonable", it is clear that it must be more than just the volume and complexity of the information requested. Under article 4, paragraph 2, the volume and complexity of an information request may justify an extension of the one-month time limit to two months. This implies that volume and complexity alone do not make a request manifestly unreasonable."

The Aarhus Guide goes on to say that the above interpretation was confirmed by the Compliance Committee in its combined findings on submission ACCC/S/2004/1 (Ukraine) and communication ACCC/C/2004/3 (Ukraine), where the Committee noted that the volume of information requested does not justify a refusal to provide the requested information. The Committee stated in that case:

"In cases where the volume is large, the public authority has several practical options: it can provide such information in an electronic form or inform the applicant of the place where such information can be examined and facilitate such examination, or indicate the charge for supplying such information, in accordance with article 4, paragraph 8, of the Convention."

As my predecessor commented in her decision in case CEI/12/0005:

The [Aarhus] Guide is a very useful reference tool, but it does not purport to be legally binding, a position which was confirmed by the European Court of Justice in Solvay and Others, Case C-182/10 (16 Feb. 2012). The lack of clarity in a number of the provisions of the Regulations is just one of the many practical difficulties my Office has encountered in dealing with the AIE regime.

The Aarhus Committee's finding in the Ukrainian case cited above concerned the cost of supplying, not assembling and fully considering, information. The EPA's decision in the current case was not based on concerns about the cost of supplying information. It was made because of concerns about the work- time which would be lost by key members of staff in the process of locating, identifying and copying the requested information.

Article 10(3) of the AIE Regulations obliges a public authority to weigh the public interest served by disclosure against the interest served by refusal in every case. For this reason, although a public authority might form the view that a request is manifestly unreasonable, it would not be justified in refusing the request for that reason if the public interest in disclosure outweighed the interest served by refusal. In other words, a sufficiently strong public interest in disclosure can mean that a request which appeared at first to be unreasonable might be found, after all of the circumstances are considered, to be reasonable.

I therefore take the view that full consideration of article 9(2)(a) is a two-step process, requiring a public authority to first consider if a request is manifestly unreasonable (a process that mainly involves considering how processing the request might affect the public authority's other work) and then, if satisfied that it appears to be manifestly unreasonable, consider whether the public interest in disclosure of the information outweighs the interest served by refusal.

The EPA's position

The EPA considered the request to be manifestly unreasonable because it estimated that it would take over 130 person-hours to process it. It provided my Office with an explanation of how this conclusion was reached. The explanation included a breakdown of the number of person-hours which it was estimated that processing the request would require from each of 19 individual members of staff or offices within the Agency. It said the estimate was for the time it could take to search for and retrieve relevant records and to produce copies of same.

In its submission to my Office, the EPA emphasised that it had invited the appellant to reformulate his request so as to avoid it being unreasonable. It also emphasised that it had provided the appellant with information on how he could access its Enva enforcement file at one of its offices and how other relevant information could be obtained from its website.

The appellant's position

The appellant submitted that his request: relates to emissions into the environment; concerns just one company out of the thousands of companies which the EPA regulates; and was confined to information acquired or generated within a 6 months period.

He argued that the EPA's estimate is grossly inflated and highly improbable for a request involving just one company and a 26 week period. He argued that, if one accepted that his request would take the EPA over 130 hours to process, that would mean that it would take the EPA a total of 130,000 hours to process similar information for the rest of its licensing operations for a mere 26 week time period. He argued that this would take 62.5 years (based on a 40 hour week).

He submitted that "a larger request regarding the Enva company and covering an approximate 3 year time period was submitted to Gas Networks and fulfilled in full and in a short period of time".

Analysis

The appellant expressed doubt about the accuracy of the EPA's time-estimate of over 130 person-hours. While there is no set cut-off number of person-hours which determines how many hours would be reasonable for a public body to expend in processing an AIE request beyond which the request would be unreasonable, I considered the appellant's challenge to the credibility of the EPA's...