Niall Sargent (Earth Horizon Productions Limited) and Bord na Móna

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0042
• Decision Date: 15 June 2017
• Issuer: Bord na Móna
• Applied Rules: Art.7(5) Art.7(8), European Communities (Access to Information on the Environment) Regulations, 2007

Niall Sargent (Earth Horizon Productions Limited) and Bord na Móna

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0042

Published on 15 June 2017

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

Background

The first AIE request

On 30 May 2016, the appellant emailed an AIE request to BnM. This request related to the tonnage of palm kernel shells (PKS) imported by BnM, the names of companies supplying PKS to BnM, information relating to compliance with standards developed by the Roundtable on Sustainable Palm Oil (RSPO), and information on three tender processes for the supply of PKS to BnM.

On 29 June 2016, BnM extended the time for making a decision on the AIE request, pursuant to article 7(2)(a) of the AIE Regulations. In particular, BnM stated that it held a large volume of information relating to the tender processes. BnM stated that it would make a decision on the AIE request by 29 July 2016.

On 25 July 2016, BnM wrote to the appellant and invited it to make a more specific request. On 29 July, the appellant modified its AIE Request in response to BnM's invitation. This modified request sought access to more specific information concerning the tender processes.

In a decision of 2 August 2016, BnM provided the appellant with information on the tonnage of PKS imported and the names of companies supplying PKS to BnM. BnM refused to provide information relating to compliance with RSPO standards on the basis that this information fell within the exception to disclosure under article 9(1)(c), relating to commercial or industrial confidentiality. BnM confirmed that one of the three tender processes was abandoned, and stated that it did not hold any requested information in this regard. In relation to information on the two completed tender processes, BnM provided the names of the successful companies.

The second AIE request

In its decision letter of 2 August, BnM stated that certain parts of the appellant's refined request of 29 July were substantially different to the initial AIE request. BnM decided to treat these parts as a new and separate AIE request. The specific subjects considered in this separate request related to the two completed tender processes (GR 04-14-2 and GR 18-14-1), insofar that these processes included any information on "A) the environmental impact of the importation of PKS in both Ireland and/or the origin country; and B) carbon dioxide (CO2) emissions estimations (such as for transportation of PKS from origin country to Ireland; burning of biomass, etc)".

On 26 August 2016, BnM wrote to the appellant referring to the second request. BnM stated that due to the volume and complexity of the information sought, it was necessary to extend the time for making a decision on the new request until 28 September 2016.

In a letter of 9 September 2016, BnM refused the appellant's second request, but provided the appellant with some contextual information on PKS usage.

On 14 September 2016, the appellant asked BnM to carry out an internal review of its decision on the second AIE request, pursuant to article 11 of the AIE Regulations. In an email of 13 October 2016, BnM affirmed its decision to refuse the second AIE request on the basis that no relevant information was held by or for BnM on the subjects referred to in the request. The appellant appealed this decision to my Office on 20 October 2016.

Scope of review

Pursuant to article 12(5) of the AIE Regulations, my role is to review BnM's internal review decision, and to affirm, annul or vary that decision. The appellant did not request an internal review of its initial request, and no appeal of that decision has been made to my Office. The appellant did request an internal review of the second AIE request. Accordingly, my review on this appeal is limited to consideration of BnM's response to the second request

Article 7(5) of the AIE Regulations provides that where information requested is not held by or for a public authority, it must inform the applicant as soon as possible. BnM contends that no relevant information is held by or for it concerning the subjects referred to in the second AIE request. The scope of my review is therefore limited to consideration of whether adequate searches have been conducted, and whether BnM was justified in its determination that no information was held.

In making this decision I have had regard to submissions made to my Office by BnM and the appellant. I have also had regard to 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].

BnM's position

In its decision letter to the appellant of 9 September, BnM stated that it did not hold any information on the subjects raised in the second request, as the information sought "was not part of the business requirements to be included in...