Mr. Tony Lowes and the Department of Agriculture, Food and the Marine

• Case Number: CEI/14/0007
• Decision Date: 13 July 2015
• Issuer: Department of Agriculture, Food and the Marine
• Applied Rules: Art.9(2)(c) Art.9(2)(d), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Mr. Tony Lowes and the Department of Agriculture, Food and the Marine

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/14/0007

Published on 13 July 2015

1. Background
2. Scope of Review
3. Definition of "environmental information"
4. Analysis and Findings
5. Decision
6. 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. Tony Lowes, Friends of the Irish Environment, Kilcatherine, Eyeries, Co. Cork

Public Authority: Department of Agriculture, Food and the Marine (the Department)

Whether the Department was justified in refusing the appellant's request for access to preliminary reports and related documentation regarding the storm damage at Gearhies, Bantry Bay, on 1 February 2014, under Articles 9(2)(c) and (d) of the AIE Regulations

Background

On 12 March 2014, the Department received a request from the appellant made on behalf of Friends of the Irish Environment (FIE) seeking access under the AIE Regulations to the preliminary scientific and technical reports referred to by the Minister in his Parliamentary reply dated 4 March 2014, and any supporting documentation and related records, regarding the storm damage at Gearhies, Bantry Bay, on 1 February 2014. The Minister's Parliamentary reply was a written answer provided in response to a question posed by Deputy Clare Daly regarding the reports the Minister had been given in relation to the fish that had been lost in the storm on 1 February as a result of damage to the cages of a certain fish farm in Bantry Bay, County Cork. The cages had contained approximately 250,000 fish prior to the storm, but during a survey that took place when weather conditions abated, it was confirmed that only about 20,000 live fish remained. In his written answer, the Minister stated:

"My Department's Engineering Division in conjunction with the Marine Institute conducted a survey at the site referred to by the Deputy at the first available opportunity and have provided preliminary scientific and technical reports to my Department.

There is evidence to indicate that due to a mooring failure the nets on the three cages appear to have 'bagged', trapping fish and leading to extensive mortalities. The three damaged cages have now been secured. It is not possible to quantify the potential number of mortalities versus escapees, at this time.

My Department, in conjunction with its scientific and technical advisors, is continuing to assess the situation as a priority."

On 7 April 2014, the Department refused the request under Article 9(2)(d) of the Regulations, which is the refusal ground relating to internal communications. On 6 May 2014, the appellant applied for internal view, emphasising the public interest served by the disclosure of any accident report affecting the environment. In a decision dated 5 June 2014, the Department affirmed its original decision to refuse the request under Article 9(2)(d) and also made reference to Article 9(2)(c) of the Regulation, as discussed in greater detail below. An appeal against the Department's decision was received by my Office on 3 July 2014.

The appellant argued that the appeal concerned a matter of extreme public importance not only in light of the circumstances of the Gearhies incident, but also because of the alleged failure of the Department to carry out its regulatory functions properly in ensuring compliance with aquaculture licensing conditions aimed at preventing the escape of fish. The appellant argued from the outset, therefore, that the appeal should be prioritised. The appellant's solicitors subsequently made a formal request for priority treatment of the appeal. On 19 September 2014, my Office informed the appellant's solicitors that, following a brief examination of the case file by an Investigator, it had been determined that it was not the type of case that could be expedited.

I regret the delay that arose in dealing with this appeal, which was due to resource shortages. My Office was working on other high priority AIE and Freedom of Information (FOI) cases dating from 2012 and 2013 at the time. Moreover, this case involved a large volume of records relating to what appeared to be an ongoing investigation of a scientific and technical nature. The matter was further complicated by the fact that the investigation related to the business affairs of a private fish farm operator. Unlike the FOI Act, the AIE Regulations make no specific provision for notifying third parties of an appeal. Nevertheless, in carrying out my functions, I must have regard to the requirements of Constitutional and natural justice. I also note that, under Article 13(1) of the Regulations, any person affected by my decision has the right of appeal to the High Court, which implicitly acknowledges that the rights of an affected third party must be taken into account in carrying out a review. In the circumstances, this was not the type of case that could be expedited in the manner requested by the appellant. I further note that, given the limits of my remit, it is not necessarily appropriate for my Office to give priority treatment to a case on the basis of an alleged failure of the public authority concerned to carry out its functions properly.

Nevertheless, it is not in dispute that this case involves a matter of significant public concern, and by May of this year, my Office was in a position to make progress with the review accordingly. The Investigator assigned to the case wrote to the appellant and the Department to notify them of her views on the matter and to give them an opportunity to make further submissions if they wished to do so. In the interests of natural justice, the Investigator also wrote to the fish farm operator concerned on 4 June 2015 to invite the company to make submissions for my consideration in reaching my decision.

In a message dated 10 June 2015, the company made comments identifying itself as the injured party in the matter and questioning the motives underlying the request, but it also maintained that it required sight of the records at issue in order to make an "informed decision" on the implications of releasing information relating to its private business. On 11 June 2015, the Investigator responded to the company by explaining that, as the records at issue were in the possession of this Office solely for the purposes of my review, she was not in a position to make them available to the company. She noted, however, that she had outlined the material issues affecting the interests of the company and had also explained that, if the company had any questions regarding the contents of the records at issue, it could contact the Department's Agriculture and Foreshore Management Division in Clonakilty, Co. Cork.

It subsequently transpired that that the company made a request to the Department for a copy of all of the relevant documentation and was told in return that a formal access request should be made under Freedom of Information or Data Protection legislation. On 22 June 2015, the company requested that the deadline for its submissions to this Office, which was due to expire on 25 June 2014, be extended pending the outcome of its formal access request to the Department. In a reply dated 23 June 2015, the Investigator explained that she was unable to delay the review as requested having regard to the scheme of the AIE regime, but agreed to extend the deadline by a further week, i.e. until 3 July 2015. To date, however, no further submissions have been received.

I have now completed my review under Article 12(5) of the Regulations. In carrying out my review, I have had regard to the appellant's statement of appeal and the various written and oral submissions made by the Department. 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.

Scope of Review

My review in this case is concerned solely with the question of whether the Department was justified in refusing the appellant's AIE request for the preliminary reports and related documentation regarding the storm damage at Gearhies, Bantry Bay, on 1 February 2014. The Department made a very large volume of records available to my Office, but only records related to the preliminary reports that were held by or for the Department as of the date that the request was received (12 March 2014) fall within the scope of my review. The records are specified in Appendix 1 to this decision, but they include the following:

inspection reports from 2007 and July 2013 and related internal communications;

the company's reports of the incident from February 2014, including an undated assessment that evidently was on file by 20 February 2014, and also a letter to the Minister dated 25 February 2014 regarding the financial implications of the losses;

correspondence between the company and Inland Fisheries Ireland (IFI);

reports from the Engineering Division dated 12 February 2014, 20 February 2014, and 25 February 2014, respectively;

reports from the Marine Institute dated 24 February 2014 and 25 February 2014, respectively, and the documentation made available to the Marine...