Scott Coombs and the Environmental Protection Agency

• Case Number: CEI/16/0003
• Decision Date: 09 August 2016
• Issuer: Environmental Protection Agency
• Applied Rules: Art.7(5), European Communities (Access to Information on the Environment) Regulations, 2007
• Court: Commissioner for Environmental Information

Scott Coombs and the Environmental Protection Agency

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0003

Published on 9 August 2016

Background

The EPA's website says that Unconventional Gas Exploration and Extraction (UGEE) involves the hydraulic fracturing (fracking) of low permeability rock to permit the extraction of natural gas on a commercial scale. It says that the EPA awarded a contract for the carrying out of a 24-month research programme looking at the potential impacts on the environment and human health from UGEE projects and operations.

On 10 November 2015, the appellant wrote to the EPA citing the AIE Regulations and asked for the following:

A list of all correspondence/documentation/pieces of paper generated, and all information held by the EPA, that in any and all ways relate to environmental information communication between the Irish Environmental Protection Agency and a company called "Achilles Procurement Services Limited" (Achilles) with regard to research and the like considering Unconventional Gas Exploration and Extraction in Ireland.

Note: the words "a list of" are shown here as they appeared (i.e. emphasised in bold) in the original request. The appellant also added, for clarity, that the terms 'environmental information' and 'held by' were used (in his request) as defined in article 3 of the AIE Regulations.

The EPA replied on 7 December 2016, refusing the request. The appellant sought an internal review on 9 December 2015, and the EPA once more refused the request. The appellant appealed to this Office on 11 January 2016.

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.

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) of the AIE Regulations 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);

Article 7(5) provides that, where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.

The EPA's position

The EPA acknowledged that it corresponds with Achilles in relation to various aspects of procurement. It submitted that:

"Such correspondence or indeed the activities carried out by Achilles do not constitute 'activities ... likely to affect the elements and factors' (in the definition of environmental information) as put forward" by the appellant.

The EPA refused the request because it considered that the information sought was not within the scope of the AIE Regulations, having regard to the definition of environmental information set out in those Regulations. Accordingly, the EPA advised the appellant of his right to seek the same information under the Freedom of Information Act.

In a submission to my Office, the EPA went further and stated that it did not hold the requested list.

The Appellant's position

In his request for an internal review, the appellant said that the information which he asked for:

"Pertains to activities ... likely to affect the state of the elements of the environment, and also affect noise, waste, emissions and discharges into the environment, since the UGEE research programme explicitly provides for drilling and other groundworks associated with drilling."

He argued that, as a broader level, the information sought is part of administrative measures initiated by Government, which may lead to policies and programmes likely to affect the environment. He also argued that UGEE activities, by definition, affect the state of the...