Mr. Andrew Jackson and Bord na Móna

• Case Number: CEI/12/0003
• Decision Date: 23 September 2013
• Issuer: Bord na Móna
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Andrew Jackson and Bord na Móna

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/12/0003

Published on 23 September 2013

1. Background
2. Scope of Review
3. Analysis and Findings
4. Decision
5. 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: Mr. Andrew Jackson, Friends of the Irish Environment, Kilcatherine, Eyeries, Co. Cork

Public Authority: Bord na Móna (BnM)

Issue: Whether BnM was justified in its refusal of the appellant's request on the ground that it is not a public authority within the meaning of the AIE Regulations 2007 to 2011 ("the Regulations")

Background

In a request made to BnM dated 13 January 2012, the appellant sought access to (1) a list of BnM bogs that are covered by an Integrated Pollution Prevention and Control (IPPC) licence; (2) a list of any BnM bogs that are not covered by an IPPC licence; and (3) data held by BnM on bogs owned and/or worked by non-BnM companies. The appellant specified that the information sought at Item Three of the request included: "locations, maps (GIS or otherwise), the area under drainage/extraction at each site, the name(s) of company(ies) involved, and any information regarding when drainage and extraction commenced". In a decision dated 9 February 2012, BnM refused the request on the basis that company did not consider itself or its subsidiaries to be a "public authority" within the meaning of the AIE Regulations. Without prejudice to its position, however, BnM provided the information requested regarding the BnM bogs. BnM denied that it held information on bogs owned and/or worked by non-BnM companies and stated that, in any event, the information could not be provided for "data protection reasons".

On 29 February 2012, the appellant applied for internal review. He set out detailed reasons for considering that BnM carries out public administrative functions, including specific duties, activities or services in relation to the environment. He also noted that the Guidance on implementation of the Regulations published by the Department of the Environment, Heritage and Local Government expressly refers to commercial semi-state bodies in its section on relevant public authorities. In addition, he recounted a telephone conversation with a named BnM employee which led him to believe that the company holds information on bogs owned and/or worked by non-BnM companies. Lastly, he challenged BnM's refusal of the information for "data protection reasons". However, in a decision dated 29 March 2012, BnM affirmed its original decision to refuse the request on the basis that it was not a public authority within the meaning of the AIE Regulations. On 23 April 2012, the appellant made an appeal to me as Commissioner for Environmental Information against BnM's decision.

In a letter to BnM dated 15 August 2013, Ms. Melanie Campbell, Investigator, outlined her reasons for considering that BnM is a public authority within the meaning of Articles 3(1)(b) and (c) of the AIE Regulations. In its reply dated 12 September 2013, BnM sought to maintain its position that it is not a public authority. It emphasised that it is a commercial body which has no licensing or regulatory role and that, due to its established Employee Share Ownership Plan (ESOP), not all of its shares are owned by or on behalf of a Government Minister. Alternatively, BnM argued for the first time that the requested information regarding the bogs owned and/or worked by non-BnM companies is not "environmental information" within the meaning of the AIE Regulations. It also argued that the information is, on the one hand, required to be made available to the public such that it falls outside the remit of the AIE Regulations by virtue of Article 4(1), and yet, on the other hand, is subject to refusal as "personal information" under Article 8(a)(i) of the Regulations. Lastly, it claimed that it does not "have control of the information being sought, in respect of the verifiable ownership rights of third parties to bog lands".

In carrying out my review, I have had regard to the appellant's statement of appeal, the submissions made by BnM, and the Department's Guidance. I have also had regard to Directive 2003/4/EC, upon which the AIE Regulations are based, and The Aarhus Convention: An Implementation Guide (Second edition, April 2013) [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.

Scope of Review

Article 12(3) of the Regulations provides for a right of appeal to the Commissioner by a person whose request for environmental information has been refused. Article 11(5)(a) of the Regulations clarifies that a decision to refuse a request for environmental information, which may be appealed to the Commissioner, includes a request that "has been refused on the grounds that the body or person concerned contends that the body or person is not a public authority within the meaning of these Regulations". In this instance, BnM has refused the request on the grounds that it is not a public authority within the meaning of the Regulations. The issue for decision in this appeal, therefore, is whether or not BnM constitutes a "public authority" for the purposes of the Regulations. This appeal does not deal with the question of whether the information requested by the appellant constitutes "environmental information" or whether such information falls to be released under the AIE Regulations.

The Definition of "Public Authority"

Article 3(1) of the Regulations provides that

"'public authority' means, subject to sub-article (2)-

(a) government or other public administration, including public advisory bodies, at national, regional or local level,

(b) any natural or legal person performing public administrative functions under national law, including specific duties, activities or services in relation to the environment, and

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b),

and includes-

(i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),

(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),

(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held-

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraphs (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information".

Article 3(2) provides:

"Notwithstanding anything in sub-article (I), 'public authority' does not include any body when acting in a judicial or legislative capacity."

It is not claimed that BnM acts either in a judicial or legislative capacity; accordingly, Article 3(2) has no relevance to this case.

As required by...