Mr. Stephen Minch and the Department of Communications, Energy and Natural Resources

• Case Number: CEI/13/0006
• Decision Date: 18 December 2014
• Issuer: Department of Communications, Energy and Natural Resources
• Applied Rules: Art.3(1), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Stephen Minch and the Department of Communications, Energy and Natural Resources

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/13/0006

Published on 18 December 2014

1. Background
2. Scope of Review
3. Analysis and Findings
4. Decision
5. Appeal to the High Court

Background

In a request dated 18 May 2013, the appellant sought access under the AIE Regulations to the report entitled "Analysis of options for potential State intervention in the roll out of next-generation broadband". The Department took no action on the request within the one-month deadline specified in Article 7 of the Regulations. On internal review, however, the Department refused the request on the basis that the report concerned is not environmental information within the meaning of Article 3(1) of the AIE Regulations. Alternatively, the Department claimed that the report would be subject to refusal under Articles 8(a)(iv) (confidentiality of proceedings of public authorities) and Article 9(1)(c) (commercial or industrial confidentiality) of the AIE Regulations.

In an appeal received by this Office on 31 July 2013, the appellant challenged the Department's decision to refuse access to the report under the AIE Regulations. He argued that the report qualifies as environmental information under subparagraphs (b), (c), and (e) of definition and that the refusal grounds referred to are disqualified by virtue of Article 10(1) of the Regulation on the basis that the report relates to "emissions into the environment". He stipulated, however, that his submission is "confidential and may not be shared with the [D]epartment".

In a letter dated 10 July 2014, Ms. Melanie Campbell, Investigator, explained to the appellant that she agreed with the Department that the report concerned is not environmental information within the meaning of the Article 3(1) of the Regulations. In doing so, she gave the appellant a brief description of the report and also explained her understanding of the nature of the National Broadband Plan (NBP). She also referred to previous decisions of this Office addressing the scope of the environmental information definition and to the judgement of the European Court of Justice in Case C-524/09, Ville de Lyon ( 22 Dec. 2010), available at www.bailii.org.

In his response to Ms. Campbell's letter, the appellant indicated that he did not accept her view of the matter, but he made no further arguments beyond referring to his previous submission dated 24 July 2013 in relation to the relevance of the information in the report to Articles 3(1)(b), (c), and (e) of the Regulations. Accordingly, I have decided to conclude this appeal by way of a formal, binding decision. While my decision does not comment or make findings on each and every argument raised by the appellant in his submission, all relevant points have been considered.

Scope of Review

The question before me is whether the report entitled "Analysis of options for potential State intervention in the roll out of next-generation broadband" is "environmental information" within the meaning of the AIE Regulations.

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)...