Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht

• Case Number: CEI/12/0008
• Decision Date: 13 March 2013
• Issuer: Department of Arts, Heritage and the Gaeltacht
• Applied Rules: Art.3(1), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Ms. Attracta Uí Bhroin and Department of Arts, Heritage and the Gaeltacht

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/12/0008

Published on 13 March 2013

1. Background
2. Scope of Review
3. Analysis and Findings
4. Decision
5. 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: Ms. Attracta Uí Bhroin

Public Authority: Department of Arts, Heritage and the Gaeltacht (the Department)

Issue: Whether the Department was justified in refusing the appellant's request for a list of AIE requests on the ground that the information concerned is not environmental information within the meaning of the Access to Information on the Environment (AIE) Regulations

Background

In a request dated 14 March 2012, the appellant sought access under the AIE Regulations to a list of all AIE requests received by the Department from 1 Jan 2011 to date together with:

• A brief description of the information requested; and
• The date the request was received; and
• The date the information requested was provided in whole or in part and/or the date it was refused; and
• The decision date of any associated internal appeal of a decision to refuse the request as appropriate; and
• An indication if the matter was appealed to the Commissioner and the resulting decision and associated date.

The Department refused the appellant's request on the basis that it did not consider the requested information to be "environmental information" within the meaning of the AIE Regulations. In its internal review decision dated 12 June 2012, the Department suggested that the information sought may be available under the Freedom of Information Acts 1997 to 2003 ("the FOI Act"). On 11 June 2012, the appellant appealed to my Office against the Department's decision. In support of her appeal, the appellant made a lengthy submission setting out her reasons for believing that the information she has requested meets the environmental information definition.

In a letter dated 11 October 2012, Ms. Melanie Campbell, Investigator, informed the appellant of her preliminary view on the matter. Briefly stated, Ms. Campbell considered that the Department's decision to refuse the appellant's request was correct. The appellant made further submissions in response to Ms. Campbell's preliminary view letter in a letter dated 8 November 2012 and by telephone on 15 November 2012. Having had regard to the appellant's submissions, 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.

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 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)".

Analysis and Findings

In Case CEI/11/0001, Mr. Gavin Sheridan and Central Bank of Ireland (26 March 2012), available at www.ocei.gov.ie, I noted that there are limits to the scope of the AIE regime. Having regard to the comments of the European Court of Justice (ECJ) in Glawischnig v. Bundesminister für soziale Sicherheit und Generationen, Case-316/01 (12 June 2003) in relation to the definition of environmental information, I found that, in order for information to qualify as "environmental information" for purposes of the Regulations, it is necessary for the information to fall within one of the six categories set out in the definition in Article 3(1).

In relation to the question of "activities" under paragraph (c) of the definition, I noted that such activities only come within the scope of the definition by virtue of their direct or indirect link to an impact on the elements of the environment. In the circumstances, I found that information on an activity must, at a minimum, reflect the link to the...