Mr Tom White and the Environmental Protection Agency

• Case Number: CEI/15/0014
• Decision Date: 09 June 2016
• Issuer: Environmental Protection Agency
• Applied Rules: , European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr Tom White and the Environmental Protection Agency

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/15/0014

Published on 9 June 2016

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

Background

The UGEE Programme (the programme)

The EPA's website explains that UGEE stands for Unconventional Gas Exploration and Extraction and that this "involves hydraulic fracturing (fracking) of low permeability rock to permit the extraction of natural gas on a commercial scale from unconventional sources such as shale gas deposits, coal seams and tight sandstones". It states that:

"The Environmental Protection Agency awarded a contract to a consortium led by CDM Smith Ireland Limited, who will carry out a 24-month research programme looking at the potential impacts on the environment and human health from UGEE projects and operations (including construction, operation and aftercare). The research programme is composed of five projects and will involve field studies (baseline monitoring of water and seismicity), as well as an extensive desk-based literature review of UGEE practices worldwide. The research programme will be managed by a steering committee comprising the Environmental Protection Agency, the Department of Environment, Community & Local Government; the Department of Communications, Energy & Natural Resources; the Geological Survey of Ireland; Commission for Energy Regulation; An Bord Pleanála; the Northern Ireland Environment Agency, the Geological Survey of Northern Ireland and the Health Services Executive (nominated following Public Consultation)."

The website says that tenders were evaluated by a panel of 27 people to identify the most economically advantageous tender. Specified evaluation criteria include ultimate cost, technical merit of the human resources offered and the proposed approach and methodology.

The EPA's website contains the following information about the composition of the panel:

The constitution of the evaluation panel was approved by the programme Steering Committee and included personnel with the capacity to make informed decisions on the tenders received. The evaluation panel consisted of 27 existing and retired personnel from the following organisations:

• An Bord Pleanála
• Commission for Energy Regulation
• Department of Communications, Energy & Natural Resources
• Department of the Environment Community and Local Government
• Department of the Environment - Northern Ireland
• Environmental Protection Agency
• ETH Zürich, Switzerland
• Geological Survey of Ireland
• Health Service Executive
• Northern Ireland Environment Agency
• Radiological Protection Institute of Ireland
• University College Cork
• University of Bergen, Norway
• University of Ulster

The website states that six tenders were received and "the contract was awarded following a robust evaluation process in full compliance with procurement guidelines".

The AIE Request

On 22 April 2015 the appellant submitted an AIE request to the EPA, stating: "In a recent newspaper article, Brian Donlan of the EPA stated that those chosen to head up research into UGEE, namely CDM Smith, were appointed by a review panel of 27 people" (the panel). The request was as follows: "Please forward the names, and relative roles and expertise of all those 27 people, along with any conflicts of interest they mentioned in relation to their work on the tender review and selection process for the UGEE project".

On 19 May 2015 the EPA gave notice of its decision to refuse the request on the basis that the requested information "does not come within the scope of the definition of environmental information as set out in article 3(1) of the AIE Regulations". The EPA informed the appellant that a request for this information could only be made under the Freedom of Information Act 2014.

The appellant requested an internal review of the decision on 19 May 2015. The EPA carried out an internal review and gave notice of its decision to affirm the original decision on 4 June 2015.

The appellant appealed to this Office on 4 June 2015. I regret that there was a delay in processing the appeal. The delay arose due to a shortage of resources in my Office, which has now been addressed.

The Information at issue

The EPA provided my Office with a spreadsheet containing more detailed information on the composition of the panel. This information is within the scope of the request, but the EPA did not claim that it constitutes all of the information within the scope of the request that is held by or for the Agency.

In most appeal cases I require sight of all withheld information in order to complete my review. However, in this case, due to the nature of the information sought and the reason given for refusal, I considered that I would be able to come to a decision as to whether the requested information constitutes environmental information without having sight of all of the records held.

Scope of Review

Under article 12(5) of the AIE Regulations, my role is to review the EPA's internal review decision and to affirm, annul or vary it. Since the EPA refused the request in the belief that the requested information is not environmental information, the scope of my review was limited to that issue alone.

In conducting my review I took account of the submissions made by the appellant and by the EPA. I had regard to: the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations; Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based; the 1998 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); and The Aarhus Convention - An Implementation Guide (Second edition, June 2014).

Relevant AIE provisions

Article 3(1) provides that "environmental information" means:

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 Appellant's position

I do not intend to reproduce the appellant's argument in full, but I have considered it in full. In a submission to my Office, the appellant said that "there seems to be some confusion as to who exactly the public authority is in this case". He suggested that the EPA, the programme's steering committee, and the panel could each be considered to be public authorities in this context.

The appellant argued that "the research study into UGEE is clearly a research study into Energy, and its effects on health and the Environment and as such is clearly Environmental Information" and he referred to the provisions of paragraph (c) of the definition of environmental information.

He argued that information on the panel would constitute environmental information within the meaning of paragraph (e) of the definition, since the panel would decide the best tender for the programme. In support of this, he argued that the panel's task included performing a cost-benefit analysis of tenders. He argued that conflict of interest declarations clearly come within the realm of assumptions used within the framework of the administrative functions being provided by the panel. He submitted that, in doing its work, the panel would take into account any declared conflicts of interest "or the assumption of...