Shell and Topaz Aviation Ireland Limited and daa, public limited company

• Court: Commissioner for Environmental Information
• Case Number: CEI/16/0043
• Decision Date: 27 September 2017
• Issuer: daa, public limited company
• Applied Rules: Art.3(1), European Communities (Access to Information on the Environment) Regulations, 2007

Shell and Topaz Aviation Ireland Limited and daa, public limited company

From Office of the Commissioner for Environmental Information (OCEI)

Case number: CEI/16/0043

Published on 27 September 2017

1. Background
2. Information held by daa
3. Scope of review
4. Analysis and findings
5. Decision
6. Appeal to the High Court

Background

This appeal concerns an AIE request made to daa*, a state owned company which owns and operates Cork Airport and Dublin Airport. In April 2016, following a public tender process, daa awarded CLH Aviación S.A. (CLH) a contract to develop and operate an aviation fuel storage facility at Dublin Airport. The appellant also participated in this tender process. On 5 August 2016, solicitors on behalf of the appellant made a request to daa under article 7 of the AIE Regulations for access to information on "the Service Concession Contract executed by the daa with CLH Aviación S.A.".

In a decision of 1 September 2016, daa refused the appellant's AIE request in full on the basis that the information sought did not fall within the definition of "environmental information" set out in article 3(1) of the AIE Regulations. In its decision, daa stated "The thrust of [the AIE Regime] is to assist the public in accessing environmental information in order to enable the public to ensure the environment is being protected, to be aware if what is being done or is to be done to protect it. It is not clear to us, how the disclosure of a confidential and commercially sensitive contract, such as the Commercial Contract you are seeking, can possibly serve those environmental interests." Daa also stated that as it was exempt from the provisions of the Freedom of Information Act 2014 (the FOI Act), the appellant's AIE request amounted to an "abuse of process" and "a circumvention of the statutory exemption under the FOI Regime". Daa provided a number of alternative grounds for refusal on the basis of articles 8(a)(i), 8(a)(ii), 8(a)(iv), and 9(1)(c) of the AIE Regulations.

On 9 September 2016, Solicitors on behalf of the appellant requested an internal review of daa's decision pursuant to article 11 of the AIE Regulations. In an internal review decision of 7 October 2015, daa affirmed its earlier refusal on the basis that the contract "does not constitute environmental information". Daa contended that this decision was in line with the Supreme Court judgment in NAMA v Commissioner for Environmental Information [2015] IESC 51, and the High Court judgment in Minch v Commissioner for Environmental Information [2016] IEHC 91. Daa also cited previous decisions of my Office to justify refusal of the request.

Information held by daa

In order to facilitate my review of this matter, daa supplied my Office with a copy of the "Concession Services Agreement" (the agreement) which was concluded between daa and CLH following the public tender process. The agreement is wide-ranging and regulates many different aspects of the fuel farm development. The appellant requested access to the agreement, and did not limit the scope of its AIE request by reference to any particular subject.

*The State Airports (Shannon Group) Act 2014 renamed Dublin Airport Authority as "daa, public limited company", styled in the lower case.

Scope of review

Under article 12(5) of the AIE Regulations, my role is to review daa's internal review decision and to affirm, annul or vary it. The scope of my review in this case concerned whether the AIE request made to daa was an abuse of process in circumstances where daa is exempt from the Freedom of Information Act 2014, and whether daa was justified in its decision that the agreement does not fall within the definition of "environmental information" set out in article 3(1) of the AIE Regulations.

The AIE Regulations transpose Directive 2003/4/EC into Irish law. This Directive implements the first pillar of the 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). In making this decision I have had regard to the 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].

Daa's position

Daa made a submission to my Office through its solicitors. It contended that the appellant's AIE request amounted to an abuse of process in circumstances where daa is an exempt agency under Part 2 of Schedule 1 to the FOI Act 2014. Daa further stated that the AIE Request was made as an attempt to subvert a tender process, in pursuit of a private interest. It also submitted that the information requested did not fall within the definition of "environmental information" as the agreement "was not integral to the project in an environmental sense". Daa provided alternative grounds for refusal on the basis of the exceptions to disclosure under articles 8(a)(ii), 8(a)(iv), and 9(1)(c).

The appellant's position

The appellant made a submission to my Office through its solicitors. It stated that it did not make the AIE request in an attempt to circumvent the FOI Act, and submitted that the tender process has no bearing on its rights under the AIE Regulations. The appellant contended that the information sought fell within paragraph (c) of the definition of "environmental information". The appellant disputed daa's submission that the agreement was essentially commercial in character. The appellant stated that it was provided with a draft agreement in the course of the tender process, and stated that certain clauses in this draft agreement related directly to the environment and emissions. The appellant sought to rely on a number of previous FOI and AIE appeal decisions relating to disclosure of tender information and contracts. The appellant submitted that the entire content of the agreement cannot be deemed confidential, and in order for article 9(1)(c) to apply a "line by line" analysis of the actual content was required. With respect to the application of article 8(a)(iv), the appellant stated that the agreement does not relate to the "proceedings" of daa. The appellant stated that the agreement was not an "informal or voluntary" communication for the purpose of article 8(a)(ii), and said that it was not seeking access to parts of the agreement which constituted the intellectual property of the parties.

Analysis and findings

Consideration of whether exempt public bodies under the Freedom of Information Act 2014 are also outside the scope of the AIE regime

Section 6(3) of the Freedom of Information Act 2014 (the FOI Act) provides that "an entity specified in Part 2 of Schedule 1...shall not be a public body for the purposes of this Act". Daa is a specified body under Part 2 under its previous name (Dublin Airport Authority plc), and accordingly the provisions of the FOI Act do not apply to daa. Daa did not make any submission on whether it is a public authority subject to the AIE Regulations. I am satisfied that daa, as a state owned company with responsibility for the operation of an airport, is (at a minimum) a public authority within the meaning of paragraph (c) of the definition of "public authority". Daa contended that the appellant's AIE request amounted to an "abuse of process" in circumstances where daa was an exempt body under the Freedom of Information Act. To support this position, daa referred to two previous OCEI appeal cases (CEI/12/0004 and CEI/13/0013) which comment generally on the relationship between the Freedom of Information regime and the AIE regime.

The AIE Regulations transpose obligations of EU law, as set out in Directive 2003/4/EC. The Freedom of Information Act is an Irish law governing access to documents. The mechanisms created by these laws are similar and overlapping to an extent, but are not identical in scope or application. Daa characterised an AIE request made to an FOI exempt body as an abuse of process, on the basis that this would undermine the FOI Act. Daa is correct in saying that a person may seek to access to information through AIE which may not otherwise be accessible under FOI. However, I do not agree with daa that such a request constitutes an abuse of process. Unlike the FOI Act, the AIE Regulations do not exempt specific entities from the definition of "public authority". The AIE Regulations are not subsidiary to FOI, and there is no obligation in law to interpret the AIE Regulations consistently with the provisions and objectives of the FOI Act. Accordingly, the fact that daa is exempt from the provisions of the FOI Act does not determine its obligations under the AIE Regulations. I am therefore satisfied that it was not an abuse of process to make an AIE request to daa on this occasion.

Daa also stated that the appellant made its AIE request following an unsuccessful tender bid, in an attempt to access commercial information. The access...