Annual Report of the Information Commissioner 2016

Part II – Commissioner for Environmental Information

Table of Contents

Introduction

The Office of the Commissioner for Environmental Information (OCEI) was established under article 12 of the European Communities (Access to Information on the Environment) Regulations 2007 to 2014 (the AIE Regulations). The AIE Regulations transpose Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information (the AIE Directive). The AIE Directive implements the first pillar - access to information - 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).

My role as Commissioner for Environmental Information is to review decisions of public authorities on appeal by applicants who are not satisfied with outcomes of requests made under the AIE Regulations. When making a formal written decision on an appeal, I may either affirm, vary or annul the public authority’s decision - in so far as that decision was the subject of the review. My decisions on appeals are final and binding on the affected parties, unless a further appeal is made to the High Court on a point of law. I made 35 formal decisions in 2017 which is more than in any other year since the establishment of the OCEI in 2007.

Although I am assisted by the staff of, and such other resources as may be available to, the Office of the Information Commissioner (OIC), the OCEI is an independent statutory appeals mechanism and is legally separate from the OIC. An additional investigator, recruited from an open Assistant Principal Officer competition run by the Public Appointments Service, was assigned to the OCEI at the end of 2017, bringing the number of OCEI investigators to three. The additional staffing at the OCEI in recent years has resulted in an increase of the number of cases closed by my Office and in improved turnaround times.

For further information on the operation of the AIE regime in Ireland, please visit my website at www.ocei.ie, which includes links to the previous Annual Reports of this Office, the OCEI Procedures Manual, the website of the Department of Communications, Climate Action and the Environment, and Directive 2003/4/EC. All of my decisions can be found on the OCEI website on the Decisions web page.

Key OCEI statistics in 2017

Appeals received by the OCEI in 2017

At the start of 2017, the OCEI had 39 appeals on hand; 36 from 2016 and three from 2015. In 2017, the OCEI received 52 new appeals from 16 appellants. This is the same as the number of new appeals that were received in 2016. In addition to the 52 new appeals received in 2017, one case was remitted to the OCEI by the Court of Appeal (see Minch -v- Commissioner for Environmental Information & Anor [2017] IECA 223 (Minch) under ‘2017 Court Proceedings’).

At the end of 2017, the OCEI had 41 valid appeals on hand. Of those 41 appeals, 38 were received in 2017, two in 2016, and one was the Minch appeal remitted to the OCEI by the Court of Appeal. At the time of writing, I have made a new decision in Minch and a decision in one of the two 2016 appeals and the remaining 2016 appeal is being progressed by an Investigator.

The two charts below show the number of appeals received, and the number of appeals on hand as of 31 December, each year from 2009 to 2017.

Number of appeals received from 2009 to 2017
Number of appeals on hand as of 31 December from 2009 to 2017
Cases closed by the OCEI in 2017

The OCEI closed 51 cases in 2017 - more cases than were closed in any other year since its establishment in 2007. I made 35 formal decisions in 2017; this too is more than in any other year since 2007. The outcome in the 51 cases that were closed by the OCEI in 2017 is as follows:

  • 35 cases were closed by formal decision
  • six appeals were invalid
  • seven cases were withdrawn
  • one case was settled
  • two cases were discontinued

The average number of days taken for a case to be closed decreased by 54 days from 316 days in 2016 to 262 days in 2017.

The two charts below show the outcome in cases closed by the OCEI in 2017 and the outcome in cases closed by OCEI from 2009 to 2017.

Outcome in OCEI cases closed in 2017
Outcome in OCEI cases from 2009 to 2017
Enquiries received by the OCEI in 2017

My staff recorded 15 general enquiries about the AIE Regulations in 2017. In 2017, my Office processed one request under the AIE Regulations and one request under the FOI Act 2014.

Powers under article 12(6) of the AIE regulations

Article 12(6) of the AIE Regulations provides that in the course of carrying out a review of an appeal I may:

  • require a public authority to make environmental information available to me
  • examine and take copies of environmental information held by a public authority
  • enter any premises occupied by a public authority so as to obtain environmental information

I am pleased to report that I had no need to apply these powers in 2017.

Deemed refusals in 2017

Essentially, a deemed refusal occurs when a public authority fails to give a decision on a request in time. The AIE Regulations impose a statutory time limit on public authorities for processing a request. Article 7 of the AIE Regulations provides that a public authority must make a decision on an applicant’s request within one calendar month, or where the public authority extends the time for processing requests due to the volume or complexity of the environmental information requested within two calendar months, from the date it received the request. Where an internal review is requested, article 11(3) of the AIE Regulations provides that a public authority must notify an applicant of its decision on the request within one calendar month from the date it received the request.

Where no decision is issued either on the original request (at first stage) or the internal review request (at second stage), or a decision is issued late, under the AIE Regulations the public authority is deemed to have made a decision refusing access. Following a deemed refusal at the internal review stage, an applicant is entitled to appeal to me for a review of the public authority’s refusal within one calendar month of the date the applicant should have received the public authority’s decision.

Increase in the number of deemed refusals

I am extremely disappointed to have to report that there was a sharp rise in the number of deemed refusals recorded by my Office in 2017. In cases closed by the OCEI in 2017, my Office recorded that there were 21 deemed refusals at first stage and 18 deemed refusals at second stage.

23% of OCEI appeals that were closed in 2017 arose from deemed refusals by public authorities at both stages of the request

As can be seen from the chart below, 2017 is by far the worst year on record in terms of the number of deemed refusals recorded by my Office.

Decisions where public authorities failed to make a decision from 2013 to 2017

The sharp rise in the number of deemed refusals seems to me to be a strong indicator that public authorities are not devoting adequate resources to processing requests. I appreciate that the National AIE Statistics compiled by the Department of Communications, Climate Action and Environment (available at its ‘National AIE Statistics’ webpage) show that the number of requests made to public authorities each year is increasing which is likely to put pressure on limited resources. However, the number of cases where an applicant did not receive an initial decision or an internal review is unacceptably high. The failure to make a decision at either stage of a request deprives an applicant of their right to access to environmental information under national, European and international law. Such “non-replies” also deprive requesters of important information on their right to appeal the refusal of their request.

In 21 (40%) out of the 51 cases closed by the OCEI in 2017, 15 public authorities failed to make first instance decisions on requests within the time specified by the AIE Regulations. The chart below shows which public authorities failed to make the decisions the first stage of AIE requests.

Deemed refusals at first stage in 2017

* Whether the body is a public authority within the meaning of the definition “public authority” in article 3(1) of the AIE Regulations is the issue at the centre of the appeal

In 18 (35%) out of the 51 cases closed by the OCEI in 2017, 13 public authorities failed to make internal review decisions within the time specified by the AIE Regulations. The chart below shows which public authorities failed to the make decisions at the second stage of AIE requests.

Deemed refusals at second stage in 2017

* Whether the body is a public authority within the meaning of the definition “public authority” in article 3(1) of the AIE Regulations is the issue at the centre of the appeal

Although the Department’s National AIE Statistics for 2017 are not yet available, a look at the number of requests received by public authorities in 2016 indicates that authorities who failed to issue decisions at first stage and second stage in 2017 broadly fall into two categories:

  1. those that receive a large number of requests
  2. those that receive a small number of requests or bodies that are not listed at all in the 2016 statistics

This supports my view that the provision of adequate resources, including training for staff in processing requests is an issue.

I note that some of the deemed refusals in 2017 related to cases where the relevant body does not consider itself a public authority and therefore that the AIE Regulations do not apply to it. However, as I may review a request that has been refused on the ground the body is not a public authority one would expect the body to notify the applicant of its decision that it is not a public authority for the purposes of the AIE Regulations.

2017 Court proceedings

A party to a review or any other person who is affected by a decision of my Office may appeal to the High Court on a point of law.

Minch -v- Commissioner for Environmental Information [2017] IEAC 223

In the case of Mr. Stephen Minch and the Department of Communications, Energy and Natural Resources (CEI/13/0006), I found that the Department of Communications, Energy and Natural Resources was justified in refusing the appellant’s request on the ground that the information sought - a report entitled ‘Analysis of options for potential State intervention in the roll out of next-generation broadband’ (the Report) - was not environmental information. The appellant appealed my decision to the High Court. The High Court in Minch -v- Commissioner for Environmental Information [2016] IEHC 91 found that the remoteness test I had applied was too narrow. The High Court set aside my decision and remitted the matter to me. I appealed certain parts of the High Court judgment to the Court of Appeal.

The Court of Appeal delivered its judgment in Minch -v- Commissioner for Environmental Information & Anor [2017] IECA 223 on 28 July 2017 (Minch). The Court, in considering whether the Report constitutes a measure affecting or likely to affect the elements of the environment, stated that the “the reference to “likely to affect” the environment should really be understood in the sense of being “capable” of affecting the environment.” The Court found that I had not erred in my findings that the Report in itself was not environmental information within the meaning of article 3(1)(c). However, the Court went on to find that the National Broadband Plan (NBP) was a plan that was likely to affect the environment within the meaning of article 3(1)(c). On the assumption the Report was used within the framework of the NBP, the Court affirmed the High Court’s finding that the Report constituted environmental information “on” economic analyses or assumptions used within the framework of a measure affecting or likely to affect the environment. The Court subsequently noted that the Department accepted that the Report had been used in the preparation of the NBP.  The Court ordered the request to be remitted to me “limited to the consideration of the question of such exemptions as may apply to the release of said Report”.

I made a new decision in the case of Mr Stephen Minch and the Department of Communications, Climate Action and Environment (CEI/17/0045) on 16 February 2018.

Redmond & Anor -v- Commissioner for Environmental Information 2016/27 JR

In the case of Mr Jim Redmond and Coillte Teoranta (CEI/14/0011), I found that certain information on the transfer of land did not fall within the scope of the definition of environmental information as defined in article 3(1) of the AIE Regulations.

Following a judicial review application by the appellant and Mrs Redmond, the High Court in Redmond & anor -v- Commissioner for Environmental Information & anor [2017] IEHC 827 found that I was correct in concluding that the information concerning the sale of the leasehold of land was not environmental information within the meaning of the AIE Regulations. The Court stated that the information at issue could not be described as affecting or likely to affect the elements and factors of the environment referred to at article 3(1)(a) and 3(1)(b) of the definition of environmental information. The Court also stated that it appeared that the Court of Appeal in Minch did not disapprove of the use of the remoteness test, but rather applied that test and in doing so found that my application of the test was flawed. The High Court’s judgment in this case was appealed to the Court of Appeal in March 2018.

Friends of the Irish Environment -V- Commissioner for Environmental Information 2017/298 MCA

In my decision of Friends of the Irish Environment Limited and The Courts Service (CEI/16/0038) I found that the Courts Service holds the information requested while acting in a judicial capacity on behalf of the Judiciary. When acting in such a capacity, the Courts Service is not a public authority within the meaning of article 3(1) the AIE Regulations. Accordingly, I found that I have no jurisdiction to review the Courts Service’s decision on the AIE request. This decision was appealed to High Court in September 2017.

Communication to the Aarhus Convention Compliance Committee (ACCC/C/2016/141)

I reported in my 2016 Annual Report of the Commissioner for Environmental Information that Right to Know CLG (an Irish advocacy group concerned with public access to information) made a communication to the Aarhus Convention Compliance Committee (ACCC/C/2016/141) in relation to aspects of Ireland’s compliance with the Convention. This communication referred to the processing of requests by the OCEI. The Department of Communications, Climate Action and Environment submitted a response to this communication to the Compliance Committee on 5 May 2017 (available here). There is no further progress to report on this communication at this time.

Issues arising

In addition to the rise in deemed refusals discussed earlier, issues arising in appeals to my Office in 2017 include:

  • the significant proportion of appeals concerning the definitions of “environmental information” and “public authority”
  • the relatively limited number of appeals considering the use of the exceptions to disclosure and the public interest test
  • the significant proportion of appeals concerning whether the public authority holds the information sought, or holds further information in addition to that identified for release

The latter raises possible questions about the level of trust between applicants for environmental information under the AIE Regulations and the public authorities processing requests.

The difficulties arising are often compounded by the broad nature of the definitions in the AIE Regulations such as the definitions of “environmental information” and “public authority”. The definition of environmental information is a technical expression with a legal meaning. What is or is not environmental information requires a degree of interpretation by the public authority on a case-by-case examination. In addition, the changing nature of public responsibilities and functions can lead to questions as to whether an entity is a public authority within the meaning of the definition in the AIE Regulations and add an extra layer of complexity to AIE appeals. Furthermore, the increasingly complex relationships between some public authorities and their subsidiaries can blur the lines as to where a request can be directed to.

Threshold jurisdictional questions

A significant number of the decisions that I made in 2017 concerned threshold jurisdictional questions relating to the application of the definitions of “environmental information” and “public authority” in article 3(1) of the AIE Regulations.

43% of decisions made by the Commissioner for Environmental Information considered whether the information requested was “environmental information” or whether the body that received the request was a “public authority”

Ten (29%) of the 35 decisions I made exclusively considered whether the information requested was “environmental information” or whether the body that received the request was a “public authority”. In total 15 (43%) of the 35 decisions I made involved a threshold jurisdictional issue. Of the ten decisions exclusively considering the threshold jurisdictional issue, I affirmed the decision in 3 (30%) of the appeals and annulled the decision in 4 (40%) of them. I varied the public authority’s decision in one (10%) of the ten decisions. In two (20%) of the ten decisions, I did not have the information before me during my review that was available to the original decision maker, therefore I did not consider it appropriate for me to affirm or annul the decision or to require the public authority to provide the appellant with further information.

Limited use of the exceptions to disclosure

In contrast to the proportion of decisions concerning threshold jurisdictional questions, there were a relatively limited number of decisions considering the use of the exceptions to disclosure and the use of the public interest test in the AIE Regulations. Of the 35 binding decisions I made in 2017, only eight (23%) concerned a refusal to grant access to information using the exceptions to disclosure set down in the AIE Regulations. In five (62.5%) of the eight decisions, I affirmed the relevant public authority’s decision. In three (37.5%) of the eight decisions, I annulled the relevant public authority’s decision.

Only 23% of decisions made by the Commissioner for Environmental Information considered the use of the exceptions to disclosure

Information held by or for a public authority

In a significant number of decisions that I made in 2017 the question arose as to whether the information requested (or further information) was held by the public authority or held for the public authority by another person or body such as a subsidiary company of the authority.

In 34% of decisions made by the Commissioner for Environmental Information a central issue of the appeal was whether information was held by or for the public authority

While the issue of whether environmental information is held by or for a public authority is a regular aspect of appeals, this was a central issue in 12 (34%) of the 35 decisions I made in 2017. In six (50%) of the 12 decisions I affirmed the public authority’s decision. In four (33%) of the 12 decisions I annulled the public authority’s decision. In 2 (17%) of the 12 decisions I varied the public authority’s decision.

Significant decisions in 2017

Summary of decision outcomes in 2017

In 2017, I made 35 formal decisions on appeals under the AIE Regulations. In 18 (51%) of the 35 decisions, I found that refusal of requests were (to some extent) not justified. In 15 (43%) of the 35 decisions, I found that refusal of requests were justified in full (although not always for the same reasons provided by the public authority). In 2 (6%) of the 35 decisions, I varied the public authorities’ decisions and required the authorities to provide the appellants with access to information.

The chart below provides a breakdown of the articles considered in the 35 decisions.

Articles considered in the 35 formal decisions

The following are some examples from the decisions I made in 2017. All of my decisions are published on the OCEI website at www.ocei.ie/en/decisions/.

Decisions on the definition of “environmental information”

Article 3(1) defines “environmental information” for the purposes of the AIE Regulations. The definition includes any information on the six broad categories listed at paragraphs (a) to (f) of that article. The category that was most at issue in 2017 was paragraph (c) concerning whether information on a measure or activity affecting or likely to affect the elements and factors of the environment or a measure designed to protect those elements is environmental information.

In this case I found that single line diagrams illustrating the layout of the electric power distribution system for electricity substations in the Laois-Kilkenny Reinforcement Project were integral information on that Project - in particular the construction of the substations. I therefore found that the requested information was information “on” an activity and was environmental information under article 3(1)(c) of the definition.

  • Dr Fred Logue on behalf of FP Logue Solicitors and the Department of the Environment, Community and Local Government (CEI/16/0025)

In this case the appellant requested details of the procedures used by Ireland for its participation in proceedings before the Aarhus Convention Compliance Committee (ACCC). That information was held by the Department as draft protocols for engagement between public bodies in dealing with communications before the ACCC.

I found that information in the draft protocols relating to the Aarhus Convention and proceedings of the ACCC is integral information on the Convention and ACCC proceedings, both of which I accepted are measures designed to protect the elements of the environment. I went on to find that those parts of the draft protocols are environmental information within the meaning of article 3(1)(c) and I annulled the Department’s decision in so far as it related to that information. However, as that information is publicly available online in an easily accessible manner I did not require its release.

I went on to find that the remainder of the information about the procedural actions to be taken by Irish public authorities in response to ACCC communications are incidental national processes and that the remainder of the information does not impart integral information on the Aarhus Convention or proceedings of the ACCC. I therefore found that the remainder of the information is not environmental information for the purposes of the AIE Regulations. As a result, I affirmed the rest of the Department’s decision as the remainder of the information in the draft protocols is not environmental information.

Decisions on the definition of “public authority”

Article 3(1) of the AIE Regulations defines “public authority” as:

(a) government or public administration, including public advisory bodies

(b) any natural or legal person performing public administrative functions under national law

(c) any natural or legal person having public responsibilities or functions, or providing public services, relating to the environment under the control of a body or person falling within paragraph (a) or (b)

Article 3(2) of the AIE Regulations provides that the definition does not include any body acting in a judicial or legislative capacity. Under article 11(5) of the AIE Regulations, where a body refuses a request because it is not a public authority I may review its decision that it is not public authority. My review in such appeals is limited to determining whether the body or person is a public authority within the meaning of the AIE Regulations.

  • Hedge Laying Association of Ireland and the Department of Transport, Tourism and Sport (CEI/17/0023)

In this case I considered for the first time the issue of whether a public authority is “acting in a ... legislative capacity”. The information requested related to the consultation between the Department of Transport, Tourism and Sport (the Department) and the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs on a Bill going through the Houses of the Oireachtas. I found that, while the Bill is going through the legislative process, the Department is acting in a legislative capacity which places it outside of the definition of “public authority”. However in accordance with the Court of Justice of the European Union in C-204/09 Flachglas Torgau GmbH v. Federal Republic of Germany (14 February 2012), I noted that once the legislative process concludes i.e. when the Bill has been promulgated as law by the President, the Department will be a public authority. Then the appellant if it so wishes can make a new request for the information, without prejudice to the use by the Department of any of the grounds for refusing access to information set down in the AIE Regulations.

In this case I found that Galway Harbour Company (GHC) has special powers, vested by law, which go beyond the normal rules applicable to relations between persons governed by private law and is a legal person performing public administrative functions under national law. I therefore found that GHC is a public authority under article 3(1)(b) of the definition. In reaching my determination I gave consideration to the fact that GHC was established under the Harbours Act 1996, that it has the power to compulsory acquire land and that it has the power to make bye-laws. I therefore annulled GCH’s decision and expressed the expectation that it should proceed to process the request.

Information held by or for a public authority

The matter of whether environmental information was held by or for the public authority was an issue in several appeals in 2017. The article at the centre of such appeals is primarily article 7(5) of the AIE Regulations. My approach in these types of appeals is to assess the adequacy of the searches conducted by the public authority in looking for information relevant to the request.

  • An Taisce and the Department of Arts, Heritage, Regional, Rural and Gaeltacht Affairs (CEI/16/0033)

In this case I found the Department’s internal review decision was not justified on the basis that the decision maker did not consider the relevant version of the Minister’s diary which was the subject of the request. The diary was treated as “a living document” and as the version of it that was available to the original decision maker was no longer available at the time of my review, I was unable to determine if it contained any environmental information. For that reason, I did not consider that it was appropriate for me to affirm or annul the decision or to require the Department to provide the appellant with further information. While I was satisfied in this appeal that the Department acted in good faith in always regarding the Minister’s diary as “a living document”, I went on to state that in hindsight this case shows the need for a public authority to “freeze” a copy of the relevant information on first learning of a request relating to a record such as a working diary. It also highlights the need for public authorities to ensure that a copy of such key information is retained for use by an internal review decision maker and later again, by my Office in the event of an appeal.

In this case I found that the Council was not justified in refusing the appellant’s request for information relating to compliance with planning conditions on the basis that the information requested was already publicly available on its Online Planning Register. I stated that where a public authority grants access to information on the basis that it is publicly available it must be satisfied that all the information requested is in fact publicly available. I went on to say that where access is granted by directing a person to where the information is publicly available, the public authority should provide sufficient detail to enable the applicant to actually access the information. I annulled the Council’s decision and expressed the expectation that it should proceed to process the request. As the Council had not completed a thorough search for all relevant records, I did not have a copy of all the information covered by the request and as a result I did not consider it to be appropriate for me to require the Council to release the information.

In this case I considered whether information held by a wind-farm company, Raheenleagh Power DAC, which is part-owned by Coillte would be held for Coillte. Coillte stated that it assumed that at least some information of the type requested existed and that if it did it was most likely held by Raheenleagh Power DAC. In the circumstances of the case I was not satisfied that such information, if held, would be held for Coillte. I found that Coillte’s decision to refuse to provide the appellant with access to further information was justified and affirmed its decision.

Manifestly unreasonable requests for environmental information

Three (37.5%) of the eight decisions I made involving the use of the exceptions to disclosure in the AIE Regulations considered whether the request was manifestly unreasonable having regard to the volume or range of information sought. I cautioned in last year’s Annual Report that making a very broad request runs the risk of a refusal where an unmanageable amount of information falls within the scope of the request. I reiterate this year that I strongly encourage both applicants and public authorities to engage on the scope of AIE requests.

In this case the request was for “all records” in the possession of the EPA in relation to the Enva plant in Laois. The EPA estimated that processing the request would take over 130 person-hours. It invited the appellant to reformulate his request and provided information on how certain information could be accessed. In the circumstances of the case I was satisfied that processing the request would impose an unreasonable burden on the EPA; in particular, on the work-time of senior and specialist members of staff, to the detriment of the Agency’s important core work.

Internal communications of public authorities

Two (25%) of the eight decisions I made involving the use of the exceptions to disclosure in the AIE Regulations considered whether the information concerned the internal communications of public authorities within the meaning of article 9(2)(d).

  • Dan Danaher, on behalf of the Clare Champion and Clare County Council (CEI/15/0035)

In this case the Council refused access to incident reports relating to a chemical release incident on the basis they were internal communications. I found that the incident reports were purely administrative and factual in character and were part of a routine record-keeping process. In the circumstances of the case, I also found that even if such information was capable of constituting internal communications, the public interest in disclosure of information of a chemical release incident would outweigh the interest served by this ground for refusal.

Other matters of interest in 201

New OCEI website

The OCEI launched a new website in December 2017. The new website is more user friendly and accessible and will facilitate the delivery of enhanced online services for both members of the public and other stakeholders. The online forms have been updated and simplified for the public and the websites are now fully mobile friendly. It provides an enhanced search function that allows our customers to more easily search for my decisions and other useful resources such as relevant case law. It has an online portal facility offering a fast and efficient facility to submit and manage applications appeals online. The new portal also allows our customers to quickly and securely transfer data and documents to us.

Engagement with the Department of Communications, Climate Action and Environment

In October 2017, an Investigator in my Office participated in the Department’s Scoping Workshop on Revision of Departmental AIE Guidance. The focus of the workshop was on revising the ‘Guidance for Public Authorities and others on implementation of the Regulations’ (May 2013) published by the Minister pursuant to article 14 of the AIE Regulations. The workshop included external stakeholders and non-governmental organisations. In December 2017, my Office provided the Department with observations on that draft revised guidance.

I look forward to further engagement with the Department in 2018 on the publication of revised guidance on access to information on the environment and on other issues of mutual concern.




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