Mr Ken Foxe, Raidió Telefís Éireann and the Department of Defence

• Case Number: CEI/15/0007
• Decision Date: 07 June 2016
• Issuer: Department of Defence
• Applied Rules: Art.3(1), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Ken Foxe, Raidió Telefís Éireann and the Department of Defence

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0007

Published on 7 June 2016

1. Background
2. Scope of Review
3. Relevant Legislative Provisions, Case Law and OCEI Decisions
4. Analysis and Findings
5. Decision
6. Appeal to the High Court

Background

The Department operates a Ministerial Air Transport Service (MATS), which provides the Government and the President with national and international air travel services. This service is operated on a flexible basis, using military air bases. The service employs a number of aircraft operated by the Department, including a Learjet 45 aircraft with capacity for 7 passengers.

The Department publishes certain MATS information on its website (www.defence.ie). Information is provided in spreadsheet form. For each MATS journey, the Department publishes information on the departure date, return date, ministerial time on board, details of locations of travel, the name of the department of State travelling, identity of Ministers travelling, and number of passengers on board. The Department does not publish any MATS information on travel by the President.

The appellant is a journalist with the Investigations Unit of RTÉ. On 19 February 2015, the appellant made a request to the Department for access to information relating to "all travel domestic and foreign undertaken relating to ministerial/VIP travel on the government jet(s), CASA aircraft, military helicopters and any other relevant aircraft in the period between March 2011 and the current date". The appellant requested access to five specific categories of information: "dates of travel; destination; number and name of passengers; and minutes and time on board". The appellant specifically requested access to environmental information on air travel by the President.

The Department replied on 26 February 2015 and refused to provide access on the basis that the information sought did not "fall within the remit of the AIE Regulations". The appellant sought an internal review of this decision on 4 March 2015. In an internal review decision of 16 March 2015, the Department affirmed the refusal on the basis that the air travel information sought was not environmental information as defined by article 3(1) of the AIE Regulations. The Department conceded that information regarding emissions by Department of Defence aircraft could be the subject of an AIE request, but did not accept that the information requested by the appellant was related to emissions into the environment. The appellant appealed the internal review decision to my Office on 19 March 2015.

Scope of Review

Directive 2003/4/EC (the Directive) implements the first pillar of the 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"). The Directive is transposed into Irish law by the AIE Regulations. In making this decision I have had regard to the Guidance for Public Authorities and others on implementation of the Regulations (May 2013) published by the Minister for the Environment, Community and Local Government [the Minister's Guidance]; and The Aarhus Convention: An Implementation Guide (Second edition, June 2014) [the Aarhus Guide].

The Department contends that the requested information does not fall within the definition of "environmental information" provided by article 3(1) of the Regulations. The Department has not made alternative arguments under articles 8 or 9 of the Regulations. Therefore, the scope of this review is limited to the question of whether the information requested by the appellant falls within the definition of "environmental information".

Relevant Legislative Provisions, Case Law and OCEI Decisions

The Regulations

Article 3(1) of the 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 including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms 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, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);"

The Aarhus Guide remarks at page 50 that in defining environmental information, the clear intention of the drafters was to "craft a definition that would be as broad in scope as possible, a fact that should be taken into account in its interpretation."

Decisions on interpretation of the AIE Regulations

In NAMA v. Commissioners for Environmental Information [2015] IESC 51, O'Donnell J. held at paragraph 10 that because the AIE Regulations implement an EU Directive, it is required that the courts approach interpretation "so far as possible, teleologically, in order to achieve the purpose of the Directive." In Minch -v- Commissioner for Environmental Information [2016] IEHC 91, the High Court affirmed the need for a teleological approach to interpretation of the AIE Regulations, and stated that the preamble to the Aarhus Convention "suggests a broad approach to the question of interpretation is correct."

Court of Justice of the European Union (CJEU) Case Law

In my decision in the case of Mr Gavin Sheridan and An Garda Síochána [CEI/13/0013] (the Garda Aircraft case), I outlined in detail the development of the "minimum connection" test in relation to the definition of "environmental information". Although I have not repeated that analysis in this decision, the same principles apply in this case. In particular, I refer to the decision of the CJEU in Glawischnig v Bundesminister für soziale Sicherheit und Generationen [C- 316/01].

In that case, the then European Court of Justice found that information on compliance measures relating to the labelling of genetically modified products did not fall within the definition of "environmental information" contained in Directive 1990/313/EEC on the freedom of access to information on the environment (subsequently repealed and replaced by Directive 2003/4/EC). The Court stated at paragraph 25:

"Directive 90/313 is not intended, however, to give a general and unlimited right of access to all information held by public authorities which has a connection, however minimal, with one of the environmental factors mentioned in Article 2(a). To be covered by the right of access it establishes, such information must fall within one or more of the three categories set out in that provision."

At paragraph 16 of the judgment, the Court clarified the term "environmental factors" in the context of its decision by reference to "information on the state of water, air, soil, fauna, flora, land and natural sites" - the first part of the earlier definition of environmental information. Although the definition of "environmental information" was subsequently expanded in Directive 2003/4/EC, I consider that Glawischnig demonstrates the principle that in order for the AIE Regulations to apply, information must have more than a minimal connection to the state of the elements of the environment.

Irish and United Kingdom Decisions on the scope of "environmental information"

In the case of Mr. Gavin Sheridan and Central Bank of Ireland [CEI/11/0001], the previous Commissioner applied the Glawischnig judgment and found that in order for information to fall within the definition, it must be "indicative of the environmental impact of the activity to which it relates". The Commissioner went on to apply the test proposed by the United Kingdom First Tier Tribunal in Nottinghamshire County Council and Information Commissioner (EA/2010/0142) (the Nottinghamshire case), which states at paragraph 79:

"The litmus test is that this information - and the key financial indicators within it - can be adjusted over a broad commercial range of negotiation in terms of the confidential...