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An Taisce and Department of the Environment, Community and Local Government (CEI/15/0016)

CEI/15/0016

Date of decision: 31 January 2017

Appellant:  An Taisce

Public Authority: Department of the Environment, Community and Local Government (the Department)

Issue:

Whether the Department's decision to refuse the appellant's request for environmental information on a Peatlands Survey was justified on the grounds that the information did not fall within the definition of "environmental information" set out in article 3(1) of the AIE Regulations. Whether the appellant's request relates to emissions into the environment for the purposes of article 10(1). Whether the exceptions under article 8 and 9 apply to the information requested.

Summary of Commissioner's Decision: 

Under article 12(5) of the AIE Regulations, the Commissioner reviewed the decision of the Department. He affirmed the Department's decision to refuse the appellant's request for access to environmental information, but varied the reasons for refusal.

He found that the Department was not justified in its decision that the information requested did not fall within the definition of "environmental information" set out in article 3(1). He found that the appellant's request does not relate to emissions into the environment for the purposes of article 10(1).

The Commissioner found that the Department was partly justified in refusing to provide access to information on identifiable individuals recorded as owners or operators of peat extraction sites, on the basis that the exception under article 8(a)(i) applied to this information. He found that the Department was not justified in its decision that article 8(a)(i) applied to other information contained in the Peatlands Survey, to the extent that such information does not refer to identifiable individuals. He found that the Department was not justified in its decision that the exception under article 8(a)(ii) applied to the information requested. The Commissioner found that the exceptions under article 8(a)(iv) and 9(2)(d) do not apply in the present case. He found that article 9(1)(b) applies to the information requested, as disclosure of the information requested would adversely affect the course of justice. He found that the public interest in disclosure of the requested information did not outweigh the interests served by refusal under articles 8(a)(i) and 9(1)(b).

Right of Appeal:

A party to this appeal or any other person affected by this decision may appeal this decision to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Background

In 2011, the European Commission commenced infringement proceedings against Ireland concerning the Habitats Directive (92/43/EC) and the EIA Directive (85/337/EEC) and relating to peat extraction on protected bogs. On 19 June 2013, the Department issued a letter to local authorities seeking assistance in completing a "Peatlands Survey". The objective of the Peatlands Survey was to inform a "conclusions paper" to be shared with the European Commission and to support "better enforcement, regulatory change, as well as awareness raising". This letter included maps of 126 locations in Ireland which were of interest to the Department with respect to peat extraction. The Department sought information on the planning status of these sites so that it could "“comment on how the overall position in relation to industrial peat extraction can be considered compliant with Directive 2011/92/EU”.  The Department's letter requested that the local authorities "forward to the Department information in relation to the planning status of these sites, specifically whether they are operating with permission, comprise exempted development, unauthorised development, etc.".  The Department clarified that it was not seeking definitive statements from the local authorities on planning matters, stating "It is emphasised that you are requested to give the planning authority’s view/assessment in relation to the planning status as opposed to a definitive legal statement (e.g. the matter of whether e.g. development is exempted would be ultimately be a matter for An Bord Pleanála or the courts in the event of a judicial review). Your assessment should be supported by the planning authority’s own information as much as possible including, preferably, a site inspection."

The local authority survey returns were collated in a spreadsheet. This spreadsheet contains answers to 14 questions, set out in columns lettered A to N. On 10 November 2014, the Department disclosed a redacted copy of the Peatland Survey report to Friends of the Irish Environment. The Department redacted all information contained in column C, which records details of the "Owner/Operator" of the sites. The other information was disclosed.

On 27 February 2015, the appellant made a request for access to environmental information under the AIE Regulations. The appellant's request was for "an unamended/unredacted version" of the "spreadsheet of planning authority returns in respect of DECLG's Peatlands Survey, such that the names of the owners/operators of the relevant sites are visible." The Department refused the appellant's request on the basis that the information did not fall within the meaning of the definition of "environmental information" as provided by article 3(1) of the AIE Regulations. The appellant requested an internal review on 1 May 2015. In an internal review decision of 11 May 2015, the Department affirmed the initial decision, and provided supplemental grounds for refusal under articles 8(a)(i) and 8(a)(ii). The appellant appealed the internal review decision to my Office on 8 June 2015.

Scope of Review

On appeal to my Office, the Department reiterated the reasons for its internal review decision, and also argued that the exceptions under article 8(a)(iv) and 9(2)(d) applied to the information requested. In the course of my review, I have considered whether the specific information requested by the appellant is environmental information, and whether the information sought relates to emissions into the environment for the purposes of article 10(1). I have also considered the exception under article 9(1)(b) and the public interest in disclosure under article 10(3).

Directive 2003/4/EC (the 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"). The Directive is transposed into Irish law by the AIE Regulations. 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].

The Department's submissions

The Department said that information on the identities of owners and operators, as submitted by local authorities in this instance, did not fall within the definition of "environmental information" contained in article 3(1) of the AIE Regulations. It argued in the alternative that four exceptions to disclosure applied as set out below.

The Department submitted that the exception under article 8(a)(i) applied which provides that, subject to article 10, a public authority shall not make available environmental information where disclosure would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law. The Department contended that the information sought is personal information within the definition in section 2(1) of the FOI Act 2014, and that section 37(1) of that Act provides for the confidentiality of such information.

The Department submitted that the exception under article 8(a)(ii) applied which provides that, subject to article 10, a public authority shall not make available environmental information where disclosure would adversely affect the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information. The Department relied on this ground at internal review stage, but did not make detailed submissions as to how this exception to disclosure applied.

The Department submitted that the exception under article 8(a)(iv) applied to the information. This article provides that, subject to article 10, a public authority shall not make available environmental information where disclosure would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law.  The Department stated that it relies on the provision of information from local authorities in order to carry out its functions. The Department submitted that section 35(1)(a) of the Freedom of Information Act 2014 applies to the information, and so the exception under article 8(a)(iv) prevents disclosure.

The Department submitted that the exception under article 9(2)(d) applied which provides that, subject to article 10, a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure.

With regard to the public interest test under article 10(3), the Department stated that it had considered the public interest in proper enforcement of planning and environmental law, and weighed this against the interest in protecting the confidentiality of personal information, and the need to protect third parties from damage as a result of the publication of incorrect information.

The Appellant's submissions

The appellant contended that information on the identity of owners and operators of peat extraction sites was within the definition of environmental information. The appellant stated that article 8(a)(i) could not apply to information which should be included in local authority Extractive Industries Registers pursuant to the Waste Management (Management of Waste from the Extractive Industries) Regulations 2009. The appellant stated that article 8(a)(ii) could not apply to the information, as persons and undertakings operating peat extraction sites were capable of being put under an obligation to confirm the details of site operations.

The appellant submitted that the public interest was in favour of disclosure of the information, and also stated that the request related to emissions into the environment for the purposes of article 10(1) of the AIE Regulations, (which would prevent the operation of exceptions under article 8 and 9(1)(c)).

An Investigator with my Office put details of Department's submissions to the appellant for comment; however, no response was received.

Analysis and Findings

Consideration of the definition of "environmental information"

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 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);"

The Aarhus Guide remarks at page 50 that the clear intention of the drafters was to "craft a definition that would be as broad in scope as possible, a fact that should be taken into account in its interpretation."

The information removed from the Peatlands Survey by the Department is contained in 176 rows of a single spreadsheet column entitled "Owner/Operator". The content of this column is not homogenous or complete, and in many cases no owner or operator is identified. The Department stated that information regarding the identity of owners and operators of peat extraction sites is not environmental information. I consider that the Peatlands Survey is information on the activity of peat extraction in Ireland, which was drafted in the context of a review of legislative implementation by the Department. I consider that such information falls within paragraph (c) of the definition of "environmental information", as information on an activity affecting the elements of the environment. I acknowledge, as the Department does,  that some of the information contained in the report is low quality, guesswork, or merely records the lack of local authority information on the identity of persons owning and operating peat extraction sites. The information reflects the state of knowledge of local authorities on sites of interest to the Department, at a certain point in time, based on various sources. Notwithstanding the variable quality and extent of this information, I consider that all of this information is integral to the implementation of environmental legislation by the Department, and constitutes environmental information under paragraph (c).

I therefore find that the Department was not justified in its contention that the information withheld did not fall within the definition of "environmental information" set out in article 3(1) of the AIE Regulations.

Consideration of article 10(1)

 Article 10(1) of the AIE Regulations provides that, notwithstanding articles 8 and 9(1)(c), a request for environmental information cannot be refused where the request relates to information on emissions into the environment. In its judgment of 23 November 2016 in Commission v Stichting Greenpeace Nederland and PAN Europe C-673/13, the Court of Justice of the European Union clarified the extent to which information can be said to relate to emissions into the environment. At paragraphs 78-80 of the judgment, the Court allowed a broad, but not unlimited, interpretation of what constitutes information on emissions, to include information on likely emissions, information necessary to validate details of emissions, and information on the consequences of emissions. However, at paragraph 81, the Court clearly stated that the concept of information on emissions does not include all information linked to emissions. In the present case, I consider that information on owners or operators does not relate to emissions in the manner prescribed by the Court. I consider that although information on the identity of owners and operators may be indirectly linked to emissions, the actual information requested by the appellant does not relate to emissions into the environment, insofar as it cannot be used to discern details of emissions in the manner set out by the CJEU. Accordingly, I am not satisfied that article 10(1) of the AIE Regulations applies in this case. 

Article 8(a)(i) of the AIE Regulations

 Article 8(a)(i) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law.

The Department submitted that the information sought falls within the definition of "personal information" set out in section 2(1) of the FOI Act 2014. It said that section 37(1) of the FOI Act 2014 prohibits release of such information. The Department also suggested that disclosure would be prohibited under Data Protection legislation, but provided no details in this regard. 

The Department's letter of 19 June 2013 to the local authorities did not directly address the issue of confidentiality or subsequent disclosure of the information sought, other than to say that a conclusion paper would be forwarded to the European Commission based on the consultation process, and that responses would inform further actions. I am willing to accept that the circumstances in which the information was provided (i.e. in the context of a request for approximate information on the ownership and operation of suspected peat extraction sites) are such that it is reasonable to conclude that there was an understanding between the local authorities and the Department that personal information concerning ownership would be treated as confidential.

The definition of personal information in the FOI Act states that "personal information means information about an identifiable individual and includes information relating to the property of the individual, including the nature of the individual's' title to any property. Section 37 provides that, subject to a public interest test and certain restrictions, an FOI request must be refused if access to the record concerned would involve the disclosure of personal information. Section 37(2) provides for a number of exceptions to the prohibition on disclosure of personal information, including where information of the same kind is available to the general public. I am satisfied that none of the conditions set out in section 37(2) apply to the information in this case, and in particular I am satisfied that although some of the personal information was obtained by local authorities from the public land registry, enforcement information held by the State on owners of suspected peat extraction sites is not generally available to the public. I have considered the public interest test set out in section 37(5) of the FOI Act 2014, and bearing in mind the unverified and approximate nature of the information concerned, I am satisfied that the public interest that the request should be granted does not outweigh the public interest in upholding the right to privacy of the individuals referred to in the Peatlands Survey. In particular, I note that ownership of a particular property by an individual is not necessarily evidence that such a person is engaged in peat extraction, and I cannot rule out the possibility that some of the information is incorrect.

I am therefore satisfied that information on the ownership of property by identifiable individuals as contained in the Peatlands Survey falls within the exception to access provided by  article 8(a)(i) of the AIE Regulations. For the purposes of article 10(3) of the AIE Regulations, I have weighed the interests served by refusal of this part of the information against the public interest served by disclosure. In circumstances where the Department sought and obtained unverified and low-quality information to inform its response to European Commission infringement proceedings, I am not satisfied that the public interest in disclosure of information on individual property ownership of suspected peat extraction sites outweighs the interests served by refusal of the appellant's request.

Therefore, I affirm in part the Department's refusal on the ground that article 8(a)(i) applies to information contained in the Peatlands Survey on ownership of property by identified individuals. However, article 8(a)(i) does not apply to all of the information contained in the "owner/operator" column of the Peatlands Survey. The redacted information also includes details of non-natural persons and statements which do not identify persons. I find that the Department was not justified in its decision that article 8(a)(i) applied to other information contained in the Peatlands Survey to the extent that such information does not refer to property ownership by identifiable individuals.

Article 8(a)(ii) of the AIE Regulations

 Article 8(a)(ii) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information. I consider it reasonable to say that a local authority can be put under an obligation to supply information to the Minister on request - for example section 222 of the Local Government Act 2001 provides that a local authority "shall provide the Minister with such periodic or other returns or other information regarding the performance of its functions as he or she may from time to time require." Accordingly, I am not satisfied that article 8(a)(ii) applies to the redacted information in this case.

Article 9(2)(d) of the AIE Regulations

Article 9(2)(d) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure.

The Department submitted that information received from local authorities was an internal communication between public authorities, subject to the exception to disclosure under article 9(2)(d). While I acknowledge that the Department and local authorities both have functions in the implementation of planning and environmental policy, I am not satisfied that a communication between a central government department and local authorities can be considered internal within the meaning of this article. I note in this regard the separate administrative, legal and organisational structures of the public authorities in question. I also consider that the character of the Department's request was in the mode of external consultation, which sought to access inconclusive information or opinions held by local authorities in their separate capacity as planning authorities.

I therefore find that the exception under article 9(2)(d) of the AIE Regulations does not apply to the information.

Consideration of article 8(a)(iv) of the AIE Regulations

Article 8(a)(iv) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including under the Freedom of Information Act)

In its judgment in Flachglas Torgau GmbH v Bundesrepublik Deutschland (C-204/09) the Court of Justice of the European Union held at paragraph 65:

"the condition that the confidentiality of the proceedings of public authorities must be provided for by law can be regarded as fulfilled by the existence, in the national law of the Member State concerned, of a rule which provides, generally, that the confidentiality of the proceedings of public authorities is a ground for refusing access to environmental information held by those authorities, in so far as national law clearly defines the concept of ‘proceedings’, which is for the national court to determine."

The Aarhus Guide suggests the following interpretation of this provision:

"...The Convention does not define “proceedings of public authorities” but one interpretation is that these may be proceedings concerning the internal operations of a public authority and not substantive proceedings conducted by the public authority in its area of competence. The confidentiality must be provided for under national law. This means that public authorities may not unilaterally declare a particular proceeding confidential and stamp documents “confidential” in order to withhold them from the public. National law must provide the basis for the confidentiality."

The Department submitted that section 35 of the FOI Act provides generally for the confidentiality of its proceedings, and that the exception to disclosure under Article 8(a)(iv) of the AIE Regulations therefore applies. The Department submitted that section 35(1)(a) of the FOI Act 2014 would apply to exempt the record from disclosure, as it contains information obtained in confidence. The Department submitted that planning authorities supplied the names of the owners and operators of peat extraction sites in confidence and on the understanding that this information would be treated in confidence, and disclosure of the information sought would be "likely to prejudice" the future provision of such information.

The Department's submission did not address the provisions of section 35 in detail. Section 35(2) disapplies the exception to disclosure under section 35(1) in circumstances where a record is prepared by a head or any other person (being a director, or member of the staff of, an FOI body or a service provider) in the course of the performance of his or her functions (unless a legal duty of confidence otherwise applies, outside of the FOI Act). In this case, the record was prepared by a number of local authorities in response to questions raised by the Department. I am satisfied that the Peatlands Survey was prepared in the course the performance of the functions of the local authorities. I am also satisfied that there is no legal duty of confidence owed to the third parties referred to in the Peatlands Survey by agreement or by statute or otherwise. Accordingly, I am not satisfied that Section 35 of the FOI Act applies to the Peatlands Survey in the manner contended by the Department, and consequently, article 8(a)(iv) does not apply in the manner suggested by the Department.

Consideration of the exception under article 9(1)(b) of the AIE Regulations.

Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries). The Minister's Guidance suggests that the course of justice includes matters "relating to anything which is the subject matter of any legal proceedings, or of any formal inquiry (whether past or present), or any preliminary investigation", including "information relating to preliminary or other proceedings instituted by the European Commission."

The Department stated that it is currently in correspondence with the European Commission regarding implementation measures concerning peatlands, including implementation of the judgment of the European Court of Justice in Case C-215/06, European Commission infringement proceedings relating to the regulation of turf cutting, and a European Commission pilot case. The Department submitted that its interaction with the European Commission as regards these matters is ongoing, and stated that the European Commission could ultimately decide to bring infringement proceedings before the Court of Justice of the European Union in relation to one or more of the above matters.

In previous cases I have accepted that, when parties are notified of European Commission proceedings, they must be able to prepare for the matter in confidence in a similar manner as when litigation before the courts is contemplated. My Investigator invited the appellant's views on the application of article 9(1)(b) in this case; however, no response was received in this regard. I am satisfied that the dominant purpose of the Peatlands Survey was to assist the Department in preparing its response to infringement proceedings initiated by the European Commission, a process which has not been concluded and may ultimately result in proceedings before the Court of Justice of the European Union. I also consider that it would adversely affect the course of justice if the Department was required to disclose information obtained for the purpose of replying to infringement procedures. Accordingly, I am satisfied that the exception under article 9(1)(b) applies to the content of the Peatlands Survey, having considered the context in which it was drafted. I consider that the article 9(1)(b) exception would apply to the document as a whole although I note that most parts of it have been released by the Department. I further consider that to separate out parts of the redacted column for release would be misleading in the circumstances of this case.

For the purposes of article 10(3) of the AIE Regulations, I have weighed the interests served by refusal of this information against the public interest served by disclosure. I note that the Department has disclosed the majority of information contained in the Peatlands Survey. Having reviewed the redacted content of the Peatlands Survey, it is evident to me that the information on owners and operators is substantially incomplete and unverified. Accordingly, the public interest served by disclosure of such information is reduced. Conversely, I consider that the primary interest served by refusal is to ensure that the Department is able to rapidly and effectively prepare its response to infringement procedures initiated by European Union institutions, including circumstances where sensitive and unverified information is required in order that the Department can form a view on national implementation of EU law.

Decision

In accordance with article 12(5) of the AIE Regulations, I have reviewed the decision of the Department. I find that the Department was not justified in its decision that the information requested did not fall within the definition of "environmental information" set out in article 3(1) of the AIE Regulations. I find that the appellant's request does not relate to emissions into the environment for the purposes of article 10(1).

I find that the Department was partly justified in refusing to provide access to information on property ownership by identifiable individuals, on the basis that the exception under article 8(a)(i) applied to this information. I find that the Department was not justified in its decision that article 8(a)(i) applied to other information contained in the Peatlands Survey to the extent that such information does not refer to identifiable individuals. I also find that the Department was not justified in its decision that the exception under article 8(a)(ii) applied to the information requested.

On appeal to my Office, the Department submitted that the exceptions under articles 8(a)(iv) and 9(2)(d) applied to the information requested. For the reasons I have stated above, I find that the exceptions under article 8(a)(iv) and 9(2)(d) do not apply in the present case.

I find that the exception under article 9(1)(b) applies to the information requested, as disclosure of the information requested would adversely affect the course of justice.

Therefore, although I find that the Department's internal review decision was only partly justified by the reasons given to the appellant, I nevertheless affirm the decision to refuse the appellant's request on the basis of article 9(1)(b) of the AIE Regulations.

Appeal to the High Court

A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.

Peter Tyndall

Commissioner for Environmental Information