Mr Gavin Sheridan and An Garda Síochána CEI/13/0013

• Case Number: CEI/13/0013
• Decision Date: 11 December 2015
• Issuer: An Garda Síochána
• Applied Rules: Art.3(1), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Gavin Sheridan and An Garda Síochána CEI/13/0013

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/13/0013

Published on 11 December 2015

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 2014

Appellant: Mr Gavin Sheridan

Public Authority: An Garda Síochána

Issue: Whether An Garda Síochána was justified in refusing access to a weekly breakdown of the hours of helicopter and other aircraft usage for the year 2012, any contract for fuel provision for the Garda fleet, and the electricity bill for Garda Headquarters at Harcourt Street, Dublin 2, for the month of December 2012 on the ground that the information concerned is not environmental information within the meaning of the AIE Regulations

In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of An Garda Síochána and found that it was justified in refusing access to the information concerned on the ground that it is not environmental information within the meaning of the Regulations. He affirmed the decision of An Garda Síochána accordingly.

Background

In a request to An Garda Síochána dated 4 May 2013, the appellant sought access under the AIE Regulations to the following information:

The total number of hours flown by each helicopter and aircraft owned or controlled by An Garda Síochána, broken down by week, for the year 2012;

Any contract between An Garda Síochána and a fuel provider for the provision of petrol/diesel to members of An Garda Síochána (in reference to arrangements entered into with a given fuel provider to allow for the purchase of fuel by ordinary members of the force);

The electricity bill for Garda Headquarters at Harcourt Street, Dublin 2, for the month of December 2012.

At no point in the decision making or review process has An Garda Síochána disputed that it is a public authority for the purposes of the AIE Regulations. However, in its original response to the appellant's request, dated 4 June 2013, An Garda Síochána dealt with the matter through its Press Office by addressing the requested items of information in an informal manner and including links to websites where information on public procurement and the arrangements between individual Garda members and the Garda Credit Union could be found. In relation to helicopter or aircraft usage, however, the response stated that "An Garda Síochána do not release this level of detail in respect of any aircraft within An Garda Síochána, as to do so could compromise national security and could compromise Garda operations".

The appellant applied for internal review on 5 June 2013, noting the lack of any specific reference to the provisions of the AIE Regulations in the original decision. However, he clarified in relation to item 2 of this request that he sought "any contract between An Garda Síochána and any provider of fuel for the Garda fleet nationally". The appellant subsequently appealed to my Office on the basis of An Garda Síochána's deemed refusal of his internal review request.

Regrettably, a long delay arose in dealing with the appeal, which was largely due to a shortage of resources that has now been addressed. In addition, in light of certain comments made by the Supreme Court in the case of National Asset Management Agency v Commissioner for Environmental Information[2015] IESC 51 [hereinafter referred to as the NAMA case], I considered it appropriate to take legal advice on the scope of the environmental information definition following the submissions made by the appellant in response to the views expressed by an Investigator in this Office in a message dated 6 July 2015.

I have now completed my review under Article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and An Garda Síochána and to the legal advice I received. I have also had regard to: the Guidance provided by the Minister for the Environment, Community and Local Government on implementation of the Regulations; Directive 2003/4/EC, upon which the AIE Regulations are based; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [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, which is more commonly known as the Aarhus Convention. In addition, I have examined a sample record of Garda helicopter flying hours for 2012, broken down by month, which was compiled for the purposes of this review from invoices received from the relevant contractor. I have also examined a copy of the electricity bill for Garda Headquarters at Harcourt Street, Dublin 2, for the month of December 2012. (No records relating to item 2 of the request were forwarded to my Office, because it is the position of An Garda Síochána, as explained below, that no such records exist.)

Scope of Review

The question before me is whether An Garda Síochána was justified in effectively refusing the appellant's request for (1) a weekly breakdown of its helicopter and other aircraft usage for the year 2012, (2) any contract with a fuel provider for the Garda fleet nationally, and (3) the electricity bill for Garda Headquarters at Harcourt Street for December 2012.

Definition of "environmental information"

The AIE Regulations are based on Directive 2003/4/EC. In line with Article 2(1) of the Directive, Article 3(1) of the AIE 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 . . . 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 ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c)".

The Directive was adopted to give effect to the first pillar of 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, which is more commonly known as the "Aarhus Convention". The Directive replaced Council Directive 90/313/EEC, the previous AIE directive, in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making.

Analysis and Findings

Issues initially raised

In its initial submission dated 24 December 2013, An Garda Síochána raised the question of whether the applicant's request was for "environmental information" within the meaning of the AIE Regulations. It suggested that at least some of the information would be more appropriately sought under the Freedom of Information (FOI) Act 1997 to 2003, but as An Garda Síochána was not previously prescribed as a public body for the purposes of FOI, the information was regarded as protected by law. An Garda Síochána therefore argued that the request was subject to mandatory refusal under Article 8(a)(iv) on the basis that disclosure would adversely affect the confidentiality of proceedings where such confidentiality is otherwise protected by law. Alternatively, and without prejudice to its claim for refusal under Article 8(a)(iv), An Garda Síochána argued that Article 9(1)(a) (public security) applied to the details requested at item 1 of the request (but it pointed out that its Annual Report provides information about the total number of hours of helicopter usage). In relation to items 2 and 3 of the request, An Garda Síochána made varying claims for refusal under Article 9(1)(c) (commercial or industrial confidentiality) and Article 7(5) (information not held).

In response to the notification of An Garda Síochána's position on the matter, the appellant argued that An Garda Síochána had failed to demonstrate that the information was not environmental information or that any refusal grounds applied. He therefore maintained that the requested information must be released in full.

Scope of the AIE regime

In Case C-204/09, Flachglas Torgau GmbH v. Federal Republic of Germany (14 Feb. 2012), available at www.bailii.org, the Court of Justice of the European Union (CJEU), otherwise known as the European Court of Justice (ECJ), clarified that "the right of access guaranteed by Directive 2003/4 only applies to the extent that the information requested satisfies the requirements for public access laid down by that directive, which requires inter alia...