Mr. Gavin Sheridan and Dublin City Council

• Case Number: CEI/12/0004
• Decision Date: 20 December 2013
• Issuer: Dublin City Council
• Applied Rules: Art.10(3), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Gavin Sheridan and Dublin City Council

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/12/0004

Published on 20 December 2013

1. Scope of Review
2. Analysis and Findings
3. Decision
4. 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. Gavin Sheridan

Public Authority: Dublin City Council (the Council)

Issue: Whether the Council was justified in refusing access to certain items of information relating to Greyhound Waste and the transfer of the waste collection service on the ground that the information concerned is not environmental information within the meaning of the AIE Regulations

Summary of Commissioner's Decision:

In accordance with Article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the Council and found that it was justified in part in refusing access to the information concerned on the ground that it is not environmental information within the meaning of the Regulations. He found that the Council was not justified in refusing access to item 2 of the request on the ground that it is not environmental information within the meaning of the Regulations and that the Council must therefore process item 2 of the appellant's request in accordance with the Regulations. He varied the decision of the Council accordingly.

In a request made to the Council dated 22 February 2012, the appellant sought access under the AIE Regulations to the following items of information:

• Any service level agreements entered into with Greyhound Waste, or their companies, subsidiaries, associates or representatives, be they limited or unlimited, in any capacity within the past three years.
• Any contract entered into between Dublin City Council, its agents or representatives with Greyhound Waste, or their companies subsidiaries, associates or representatives, be they limited or unlimited, in any capacity within the past three years.
• Any breakdown or description of any and all companies or operators considered by the Council to carry out waste services, including but not limited to Greyhound Waste
• All records of communications received from and sent to Greyhound Waste, including their representatives, advisors or people acting on their behalf in the 7 days prior to Greyhound beginning their operations for Dublin City Council.
• All records of communications received from and sent to Greyhound Waste or their representatives, advisors or people acting on their behalf in the 7 days prior to the signing of contracts between DCC [the Council] and Greyhound.

In a decision dated 22 March 2012, the Council refused the request on the basis that it was not a request for "environmental information" within the meaning of the AIE Directive upon which the Regulations are based. The Council added that, if the request were considered to be valid, access would be refused because the information is "commercially sensitive". In its internal review decision dated 20 April 2012, the Council affirmed its original decision to refuse the request. The Council gave the following reason for its decision: "The documents and details sought by you relate to a commercial agreement between Dublin City Council and Greyhound Recycling and Recovery and do not come within the scope of [the environmental information] definition and therefore cannot be the subject of a request for information under the AIE Directive." On or about 2 May 2012, the appellant appealed to my Office against the Council's decision.

In correspondence with this Office, the Council initially stated that the only document considered relevant to the request was an Asset Purchase Agreement (APA) between itself and the Greyhound Recycling and Recovery ("Greyhound") company, a copy of which was provided for the purposes of my review. During the course of the review, however, Ms. Melanie Campbell, Investigator, met with the Council and was shown the full file of records relating to the transfer of the waste collection service. It was explained during the meeting that the Council has exited the waste collection service business by selling the relevant assets and business to Greyhound and that no service level agreements therefore exist. While it was accepted that there are records falling within the scope of items 3 to 5 of the request, Ms. Campbell and the Council agreed that such records do not contain environmental information and therefore do not fall within the remit of the Regulations. Ms. Campbell and the Council differed on whether the APA qualified as environmental information.

The Council also provided written submissions at the meeting and subsequently forwarded a sample of the records falling within the scope of item 5 to this Office. On 28 August 2013, Ms. Campbell notified the appellant of her preliminary view on the matter. The appellant responded with a submission on 29 September 2013. Having had regard to the submissions made by the Council and the appellant, I have decided to conclude this appeal by way of a formal, binding decision.

Scope of Review

The question before me is whether the appellant's request is for "environmental information" within the meaning of the AIE Regulations. The appellant accepts, however, that there is no service level agreement as described in item 1 of his request. Item 1 of the request therefore does not form part of this review.

Preliminary Matter of Jurisdiction

In her preliminary view to the appellant, Ms. Campbell indicated that she intended to recommend that the Council be directed to deal with the APA in accordance with the Regulations. The appellant objects to the procedural approach proposed by Ms. Campbell, however. He argues that the ground for the Council's decision was that the requested information is not environmental. According to the appellant, if I determine that the requested information is environmental, then I should annul the Council's decision and order the immediate release of the information concerned. I disagree in the circumstances of this case.

In her Annual Reports, the former Commissioner, Ms. Emily O'Reilly, referred to a number of practical difficulties relating to the operation of the AIE regime in Ireland. Many of the difficulties seem to relate to the fact that the AIE and FOI [Freedom of Information] regimes have not been amalgamated into a single access process as in the UK/Scotland. Consequently, a considerable amount of avoidable confusion between AIE and FOI access rights and procedures seems to exist among public authorities and the public alike.

One area of confusion relates to the matter of jurisdiction. In the UK, a single request covering both environmental and non-environmental information can be accepted as valid in relation to both types of information and then be dealt with through the same overall process under the FOI Act and/or the Environmental Information Regulations (EIRs) as appropriate. In Ireland, in contrast, a request must explicitly state whether it is made under the AIE Regulations or under the FOI Act. If it is made under the AIE Regulations, it may then be rejected on the basis that it is not for "environmental information", since the right of access under AIE applies only with respect to environmental information as defined in Article 3(1) of the Regulations; there is no automatic default mechanism for the request to be dealt with under the FOI Act. If the matter is then appealed to my Office, the question of whether the request is for environmental information or not must be resolved definitively as a threshold jurisdictional matter, since my powers as Commissioner for Environmental Information likewise apply only with respect to environmental information. Moreover, I note that, provided that the public authority appears to be acting in good faith, it would not be a good use of this Office's very limited resources to deal with substantive issues in the alternative while valid threshold questions of jurisdiction remain outstanding, particularly where, as here, the request involves records affecting the interests of a third party.

At the same time, I recognise that a bifurcated approach to dealing with appeals of this nature can be frustrating for appellants because of the delays involved. As the former Commissioner acknowledged in her recent decision in Case CEI/12/0005, Mr. Pat Swords and the Department of Environment, Community and Local Government (9 September 2012), the delays in bringing AIE appeals to completion are certainly regrettable and arguably not in keeping with the State's obligations under the Aarhus Convention. However, as she also acknowledged, the delays will be difficult to overcome given the demands of the AIE regime as it currently operates in Ireland on the one hand and the dearth of available resources on the other. While I have no wish to add to the delays, if a valid threshold question of jurisdiction has been raised, it needs to be resolved before the matter may proceed.

For the time being, it seems to me that the most sensible approach for dealing with appeals involving valid threshold jurisdictional issues is as follows: Once a determination on the threshold question is made, the case should be closed, administratively if agreement is reached but otherwise by way of a binding decision. If it is determined that the matter is within the remit of AIE, and no appeal to the High Court is made, the public authority should then deal with the request in accordance with the Regulations. If the appellant remains dissatisfied with the handling of his request following internal review and thus appeals again to this Office with respect to the original...