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Decision on Appeal to Commissioner for Environmental Information: Case CEI/07/0006

Access to Information on the Environment Regulations 2007 (S.I. No. 133 of 2007)

Applicant

Ms. Mary Reilly, Regional Secretary - West, Open Focus

Public Authority

Sligo County Council

Issue

Whether the charging of a fee was in accordance with: article 5 of Directive 2003/4/EU as implemented by article 15 of the Access to Information on the Environment Regulations 2007 (S.I. No. 133 of 2007)

Summary of Commissioner's Decision

The Commissioner found that the charging of a fee by the Council was not in accordance with article 5 of the Directive as implemented by article 15 of the Regulations.

Date of Commissioner's Decision

26 May 2008

Background

On 9 August 2007, Open Focus requested environmental information from Sligo County Council in the form of sixteen queries about contracts for, and the operation of, proposed wastewater and sewage treatment plants in County Sligo. The request was made under the European Communities (Access to Information on the Environment) Regulations 2007 [S.I. No. 133 of 2007].

On 4 September 2007, the Council wrote to Open Focus saying that "the charge for making this information available is €285" and that "[o]n receipt of this fee, your request will receive further attention". Open Focus responded on 12 September 2007 by asking for the charge to be justified and for details of how it was computed. In its email response of 18 September 2007, the Council stated that the charge was calculated on the basis of seven hours staff time (five hours by a Senior Executive Engineer and two hours by a Staff Officer) taken to assemble the items of information. On 27 September 2007, by email, Open Focus applied for an internal review of the decision to charge €285. It contended that the amount was "excessive and beyond that allowed for in the EU Directive and provisions of ... Statutory Instrument No. 133 of 2007."

The Council failed to deal with this internal review application within the stipulated period of one month and, on 26 November 2007, Open Focus appealed to my Office against the decision of the Council. My Office accepted the appeal having regard to article 11(5)(c) of the Regulations which provides that a reference to a request refused includes, for the purposes of the right of appeal to my Office, a request "that has otherwise not been dealt with in accordance with Article 3, 4 or 5 of the Directive (2003/4/EC) (including the ground that the amount of the fee charged under article 15(1) is excessive)". Article 5 of the Directive deals with "Charges".

I am taking it that the decision of the Council was to grant the request but subject to the payment by the requester of a fee of €285. Accordingly, what I have to decide in this case is whether the charging of a fee by the Council was in accordance with article 5 of the Directive as implemented by article 15 of the Regulations.

Contacts with Council

My Office wrote to the Council on 26 November 2007, enclosing a copy of the appeal, notifying the Council that the appeal had been accepted and inviting it to make submissions. On 10 December 2007, my investigator gave the Council the following preliminary views:

that where a fee is charged, a list of how fees are calculated must be available to the public;
that only the actual costs of supplying the information may be charged; any staff time spent determining what information is held should not be counted;
that the calculation of the charge, as in this case, by reference to the hourly salary of a senior officer was not reasonable.

My investigator requested a breakdown of how the officers' hours were spent i.e. what the Senior Executive Engineer and the Staff Officer did in relation to the supply of the information. She also invited the Council to settle the case, without the need for a formal binding decision, if it accepted her view that the charge was not in accordance with the Directive and not reasonable in the circumstances.

On 18 December 2007, the Council provided a summary report from its Senior Executive Engineer (Water Services) showing the estimated time taken in relation to each of the 16 queries contained in the request for information i.e. how the Senior Executive Engineer's five hours was calculated. This included a note clarifying that no charge was applied "where information is readily available or will be accessed in compiling replies to other questions". The report appears to relate solely to the work of the Senior Executive Engineer and the only reference to Staff Officer's time is a covering note from the Council to the effect that the Senior Engineer had asked that one hour of Staff Officer's time for "the collation of the report" be included.

My Office provided the Council's Summary Report to Open Focus which reiterated that it still wished to have access to all of the items. Open Focus made oral submissions in which it made reference to the emphasis in the Water Directive on information about water and sewage schemes being made available to the public. It argued that there is a public interest in favour of release of this information and that the charge is acting as a barrier to public participation in matters of environmental importance.

On 3 March 2008, having considered all of the submissions, my investigator wrote to the Council to say that she would be recommending to the Commissioner that she should direct that the information sought should be provided without charge in this instance. The investigator again asked the Council if it would be prepared to settle the case on the basis of her assessment of the likely outcome of a formal decision by myself as Commissioner.

The Council's Response

The Council responded by letter dated 27 March 2008. It argued that it is entitled to charge for providing detailed environmental information, that the charge imposed does not exceed a reasonable amount and that each application must be costed on its own merits. In relation to the Senior Executive Engineer's involvement, it stated that most of the information was of a highly technical nature and that the queries could be addressed only by an appropriate person with technical knowledge and competence so as to provide accurate information in the most efficient manner. According to the Council, the charges sought "do not exceed the actual cost of producing the material and do not include any indirect costs"; for example, the costs of input by additional staff members were not included. The Council provided a table showing the hourly rates charged by consulting engineers for project work.

The Information

The Council provided, at my Office's request, copies of the information it proposes to supply. The material identified by the Council as being covered by the request comprises a four page response by the Council to the questions posed by Open Focus together with a folder, with table of contents, of documents relating to the Enniscrone and Sligo Wastewater Treatment Plants. The folder has approximately 160 A4 pages - many of which are two sided copies. It includes several maps copied in A3 format.

Analysis and Findings

Statutory Provisions

Directive 2003/4/EU guarantees a right of access by the public to environmental information held by or for public authorities; the Directive also sets out "the basic terms and conditions of, and the practical arrangements for", the exercise of this right. The Directive has been given effect in Ireland by way of the European Communities (Access to Information on the Environment) Regulations 2007 [S.I. No. 133 of 2007], made by the Minister for the Environment, Heritage and Local Government.

Article 15(1) of the Regulations provides that a "public authority may charge a fee when it makes available environmental information in accordance with these Regulations ... provided that such fee shall be reasonable having regard to the Directive." Article 15(2) states that: "Where a public authority charges a fee pursuant to sub-article (1), it shall make available to the public a list of fees charged, information on how they are calculated and the circumstances under which they may be waived."

Article 5 of the Directive provides -

"1. Access to any public registers or lists established and maintained as mentioned in Article 3(5) and examination in situ of the information requested shall be free of charge.."

2. Public authorities may make a charge for supplying any environmental information but such charge shall not exceed a reasonable amount.

3. Where charges are made, public authorities shall publish and make available to applicants a schedule of such charges as well as information on the circumstances in which a charge may be levied or waived."

It appears that Article 5.1 of the Directive has not been transposed explicitly into national law in as much as the Regulations do not contain any equivalent provision. However, the intent of Article 5.1 is reflected in Guidance Notes published by the Department of the Environment, Heritage and Local Government (considered below).

It is clear from these provisions of the Directive and of the Regulations that a public authority is not required to make a charge for the supply of environmental information; but where a public authority chooses to levy such charges, there are certain mandatory requirements to be satisfied. The primary issue for decision in this appeal, therefore, is whether the Council has met these mandatory requirements.

Mandatory Requirements Met?

The Council has made no case that it has made available to the public generally a list of the fees charged, nor that it has made available information on how the fees are calculated. I take it that this has not been done. At the same time, it is the Council's position that its practice in this case is in compliance with the mandatory requirements.

The Council rejects the view that the requirement to provide a list (or schedule) of fees, and the basis for their calculation, is a requirement which must be fulfilled prior to the imposition of any charge. It says that the Regulations as drafted do not state in absolute terms when the list of fees and the information on charges must be made available. The Council takes the view that it is not a mandatory requirement that the list of fees, and information on charges, should be available to the applicant in advance of a request; nor is it mandatory that it be made available at the point when the fee is being sought. The Council considers that it is reasonable that the schedule of charges would be made available to the applicant on request, which is what it did in this case.

It is clear, from the use of "may" in article 15(1) of the Regulations, that a public authority has discretion as to whether or not to charge a fee when making environmental information available. But where a public authority decides to impose fees, it must do so in accordance with the requirements of article 15(2) of the Regulations which, in effect, provides for a prior policy decision that fees will be charged. Thus, it seem to me that article 15(2) of the Regulations applies to applications generally rather than to a specific application. Accordingly, the fees to be charged (if any) in the particular case will depend on the general charging arrangements (including provision for waiver of fees) decided upon by the authority; and where such general charging arrangements have been decided upon, the public authority is required to make information on these arrangements available to the public.

If the intention was, as the Council argues, to provide for specific fee information to an applicant on request or in any case where a public authority is considering levying such charge, it would have been a straightforward matter for the statutory instrument to state this. I note also that article 15(1) includes provision for the charging of a fee by a public authority when information is made available following an appeal to my Office. I consider that this supports the position that a scheme of charges should be prepared which can be applied later when information is actually made available. This would have the effect of putting the public on notice of the likely scale of the charges incurred in a particular request though the actual charge would depend on the extent of the information provided.

To the extent that there may be some imprecision in the language of article 15(2) of the Regulations, it is helpful to look at the Directive provision which article 15(2) is intended to implement. Article 5(3) of the Directive as cited above requires that, where charges are made, public authorities must publish a schedule of their charges as well as making this information available to applicants. Bearing in mind that domestic courts are obliged to interpret national law so as to achieve consistency with, and give effect to, European law, the Directive's provisions would tend to support the above interpretation of the Regulations. The ordinary meaning of "publish" is to make something generally known or to disseminate to the community in general. Clearly, what is provided for is the making available of charging information both to the public generally, including potential applicants for environmental information, as well as to actual applicants who have already made a request for access to environmental information.

I have looked also at the Guidance Notes published by the Department of the Environment, Heritage and Local Government (Section 16; page 33). Although this document does not purport to be a legal interpretation of the Regulations, public authorities are obliged under Article 14 of the Regulations to "have regard to" these guidelines when performing their functions under the Regulations. The Department says that, in general, it is to be expected that public authorities should adopt a policy in favour of providing information without charge "as long as the costs involved to the authority are not significant". It goes on to state that public authorities "must make publicly available a list of fees, if any, charged for provision of environmental information and the method by which those fees were calculated."

Conclusion

My conclusion is that the Council's imposition of a fee in this case is not in compliance with the requirements of article 15 of the Regulations. This is because the Council failed to make available to the public details of its charges, how they are calculated and the circumstances in which they will be waived. Given that the requirement to publish such information on charges is prefaced in the Regulations by the phrase "Where a public authority charges a fee..." [and in the Directive by the phrase "Where charges are made..."], I take the view that a charge should not have been made in this case where no such information was published.

While it is not strictly necessary to do so, in the light of my primary conclusion above, for the sake of completeness I will also consider whether the fee as calculated by the Council in this instance is reasonable.

Is the fee charged reasonable?

In response to a request by Open Focus for clarification on the calculation of the proposed fee of €285, the Council replied that:

no charge was being made for "the items of information"
a total of seven hours was the time it would take to assemble the information requested, and
the seven hours were made up of five hours at the Senior Executive Engineer rate of €47.05 per hour and two hours at the Staff Officer rate of €24.50 per hour.

It seems to me that if a scheme for charging had been adopted and published, as required, its application could be reviewed by reference to its provisions e.g. whether a copying or other charge was reasonable and properly applied having regard to the volume of information identified as coming within the scope of the request. Given that no such list of fees has been made available by the Council outside of its specific calculations in this case, I must review the reasonableness of the charge by reference to the details provided by the Council. I accept that the Council spent the staff time it says it did in dealing with the request. However, the Regulations clearly foresee that there may be cases in which the amount of the fee sought by the public body will be found by me not to be reasonable. The most important consideration here is the provision in article 15(1) of the Regulations which provides that the fee must be reasonable "having regard to the Directive".

Article 5(1) of the Directive makes it clear that access to public registers and examination in situ of the information requested shall be free of charge. Article 5(2) of the Directive permits the charging of a fee for "the supply of information".

The 18th recital in the Directive's preamble deals with the matter of charges for the supply of environmental information. While the Directive preamble does not constitute an operative provision, it does provide helpful guidance. The 18th recital touches on the question of what constitutes a "reasonable charge" and includes the following:

"18. Public authorities should be able to make a charge for supplying environmental information but such a charge should be reasonable. This implies that, as a general rule, charges may not exceed actual costs of producing the material in question."

The recital goes on to discuss instances where public authorities make available environmental information on a commercial basis. I am satisfied that this does not apply in this case.

In its Guidance Notes, the Department states that public authorities may not charge "for the actual making of a request for environmental information, for access to registers or lists of environmental information or for the examination in situ of such information". It advises that a reasonable charge will vary depending on the volume of information to be released but could include staff and other costs "connected with searching, retrieving, compiling or copying of the information." It goes on to clarify that the charge may only relate to the supply of information and should not be made in respect of provision of advice on the information available, for time spent discussing a request or for determination of what information is discoverable.

Search and Retrieval of Information

I have considered the question of whether the Council was entitled to include in its charges the staff time spent in searching for and retrieving the information the subject of the request. The Council's submissions indicate that the fee is based on the direct costs of the time spent by those staff best placed to supply the information. It says that the charges do not exceed the cost of "producing the material". Its written submissions do not make reference to the two hours of Staff Officer time included in the original charge of €285. In a telephone conversation with my investigator, a member of the Council's staff indicated that this element of the charge (€49.00) was not being pursued.

Given that Article 5 of the Directive specifies that information requested should be made available free of charge where it is examined in situ, it seems to me that it is not reasonable to include a charge for searching for the files and, for example, taking them from storage and extracting the relevant information. This exclusion from charges does not appear to be restricted to information which public bodies would normally be obliged to have available for inspection under other statutory provisions e.g. planning files. I note that the Council prepared answers to the requester's queries about the water and sewage plants together with copies of relevant documents and maps. However, I consider that if the information which was held by the Council had been inspected by the requester in the Council offices, the Council would not be entitled to make a charge for facilitating this.

Furthermore, in order for a decision maker within the Council to deal with the request for information and form a view as to whether it could be supplied under the Regulations, it would be necessary for the information at issue to be identified and retrieved. There is no provision in the Directive or in the Regulations for the charging of fees for the processing of a request for access to environmental information. Following the assessment of the information and, as in this case, a decision to release it, I consider that it is the next step - the supply of the information to the requester in copy form - that potentially attracts the charge. I note that, although the wording of the relevant provision in the United Kingdom's regulations made under the Directive differs somewhat from that in the Irish Regulations and the decision is in no way binding on me, the UK Information Tribunal has made a finding on the cost of locating and retrieving information. In the Markinson case [Appeal EA/20050014 FER0061168 - David Markinson and the Information Commissioner - Decision 28 March 2006], the UK Tribunal observed that the relevant UK regulation:

"... provides that the information in question should be made available for inspection free of charge and we believe that, if the costs of locating and retrieving a piece of information should be disregarded for that purpose, it is not open to a public authority to regard it as reasonable to include them in the cost of copying the same material."

My Office brought this case to the attention of the Council; it did not address it in its submissions.

I do not agree with the Department's view as expressed in its Guidance Notes that the charge could include, for example, staff costs connected with searching and retrieving the information. I have difficulty in reconciling this advice with the provision in the Directive (repeated in the Guidance Notes) that no charge can be made if the requester examines the environmental information in situ. The question also arises as to how a search and retrieval charge can be seen as reasonable when charging for the determination of what information is releasable (which presumably involves the retrieval and examination of the same information) is not chargeable. I have no difficulty with the advice that costs connected with compiling or copying of the information may be included.

What is ''reasonable'' having regard to the Directive?

I cannot find anything in the Regulations or in the Directive to support the Council's position that charging for the time expended by reference to the salary of such a senior officer as a Senior Executive Engineer is reasonable. I consider that the argument concerning the technical competence and knowledge required to identify the relevant information applies to the processing of the request and the decision as to what falls to be released under the Regulations. It is not relevant to the actual supply or provision of the information to the requester after that decision has been made. If the charge were to be calculated on the basis of the salary of senior staff dealing with particular projects, it seems to me that this could be unfair to applicants. For example, in the case of a request to a public authority whose information was managed so as to be accessible by relatively junior administrative staff, the charge would be less than that applicable were the information managed so as to be accessible only to senior staff.

The European Court of Justice, dealing with provisions for charging under the previous directive on Freedom of Access to Information on the Environment (90/313/EEC), held that, in the absence of more details in the Directive itself, what constitutes a reasonable cost must be determined in the light of the purpose of the Directive [Case C- 217/97 - The Commission of the European Communities v Federal Republic of Germany]. The overriding purpose of Directive 2003/4/EU is to guarantee the right of access to environmental information held by or for public authorities. Article 1 of the Directive sets out its objectives which include ensuring the making available and dissemination of environmental information to the public to achieve the "widest possible systematic availability". Article 3 requires that Member States put practical arrangements in place in relation to such matters as facilities for the examination of material required and registers and lists of the information held with clear indications of where such information can be found. I do not see that the information provided by the Council, regarding the hourly rates charged by private sector engineers, has any relevance in this case.

Were it necessary to make a decision on the matter, I am clear that decision would be that the fee sought by the Council in this case was not "reasonable having regard to the Directive".

Decision

In accordance with article 12(5) of the Regulations, I have reviewed the decision of Sligo County Council in this case and I find that its purported imposition of a charge was not in compliance with the requirements of article 15 of the Regulations. Accordingly, I hereby annul the Council's decision regarding the charge and direct that the information sought be supplied to Open Focus without charge.

Under article 12(7) of the Regulations, the Council is obliged to comply with my decision "within three weeks after its receipt". Where a public authority fails to comply with my decision within that time, article 12(8) provides that I may apply to the High Court for an order directing compliance with that decision.

Appeal

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 is given.

_______________

Emily O'Reilly

Commissioner for Environmental Information

Decision on Appeal to Commissioner for Environmental Information Case CEI/08/0001

European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007)

Applicant:

Hill of Allen Action Group care of Brian O'Loughlin, Rathangan, County Kildare

Public Authority:

Kildare County Council

Issue:

Whether the Council is justified by reference to articles 8 and 9 of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No.133 of 2007) in refusing a request for information about planning and enforcement matters concerning the Allen Quarry, Co Kildare, including documentation on court proceedings and correspondence between the Council and Roadstone Dublin Limited.

Summary of Commissioner's Decision:

The Commissioner found that: (i) the Hill of Allen Action Group is an "applicant" within the meaning of that term in article 3(1) of the Regulations; (ii) the information sought is "Environmental Information" within the meaning of that term in article 3(1) of the Regulations; (iii) article 8(a)(iv) of the Regulations entitles the Council to withhold those parts of the information which qualify for legal professional privilege and the public interest served by disclosure does not outweigh the public interest served by refusal having regard to article 10(3) of the Regulations; (iv) article 9(1)(b) of the Regulations does not apply to any of the remaining information and the Council is not entitled to rely on this exception to withhold it; (v) with the exception of a small amount of information relating to the quarry's reserves, article 9(1)(c) of the Regulations does not apply to the remaining information and the Council is not entitled to rely on this exception to withhold it and (vi) article 9(2)(c) of the Regulations does not apply to any of the remaining information and the Council is not entitled to rely on this exception to withhold it.

Background

On 24 September 2007, the Hill of Allen Action Group, care of Mr Brian O'Loughlin, Chairperson requested the following from Kildare County Council:

Court proceedings of the Judicial Review between Roadstone Dublin Limited and Kildare County Council, which was struck out 30 July 2007;
All correspondence and any other documents related to the Allen Quarry which have not been made publicly accessible in Planning File Ref. No. QY28.

The Action Group (the applicant) referred to Directive 2003/4/EC and the European Communities (Access to Information on the Environment) Regulations 2007 (S.I .No 133 of 2007). In its decision of 26 October 2007, the Council released some information and refused information relating to the Judicial Review Proceedings. The applicant applied for an internal review of that decision on 17 November 2007. It identified certain additional information which, it said, should have been included in the documents released. On 17 January 2008, not having received a decision from the Council on its internal review application, the applicant appealed the refusal to my Office.

The Information

The information sought originated in a decision of 21 July 2006 by Kildare County Council under section 261 of the Planning and Development Act 2000 to require the quarry operator (Roadstone) to submit a planning application and an Environmental Impact Statement (EIS) in respect of its operation of the Allen Quarry. That decision was the subject of an application by Roadstone for Judicial Review in the High Court in respect of which the proceedings were struck out on 30 July 2007. Since that time, the Council and Roadstone appear to have engaged in negotiations with a view to securing agreement on the operation of the quarry under section 47 of the Planning Act.

The Council has provided copies of the documentation to my Office. The information to be examined in this appeal comprises documentation from the Executive Planner's file, the Council's "Judicial Review File" and a small amount of information from the legal adviser's file.

The Council's Decision

In its decision, the Council refused access to the information relating to the Judicial Review proceedings under article 9(1)(b) of the Regulations on the basis that disclosure would adversely affect the course of justice. Following a request (first made on 22 January 2008) from my Office, the Council carried out a reconsideration of its position in the light of its failure to deal with the internal review application made by the applicant. In its letter of 14 May 2008 to the applicant, it reiterated its refusal of access to information relating to the High Court proceedings, correspondence with its solicitors and information relating to the proposed agreement with Roadstone under section 47 of the Local Government (Planning and Development) Act 2000. It released a copy of File QR28 and its "Historic Monuments" file. It said that all of the contents of its Unauthorised Development File had already been released to the applicant.

The Applicant's Position

The applicant argues that, as there is no case pending, the refusal to supply information on the judicial review proceedings is invalid. It says that it is entitled to know why the planning application and EIS were not pursued by the Council and that, if the normal planning procedure had been followed, it would have had the right to consider the proposals, make observations and exercise a right of appeal if necessary. As things stand, it has not been able to have an input into the planning process despite having attempted to become involved in the Judicial review proceedings as a Notice Party. It expressed concern and disappointment about the delays by the Council in providing the information required to see whether or not the Council acted correctly.

The Council's Position

In its response to my Investigator's "preliminary views" letter of 22 January 2008, the Council made a submission dated 20 February 2008. It set out the background to the case, including the Judicial Review proceedings. Raising the question of whether the information requested was "environmental information" as defined in article 3 of the Regulations, the Council said that, while information relating to the registration process under section 261 and the agreement under section 47 of the Planning Act "is likely to constitute environmental information", the definition did not extend to the Judicial Review proceedings. It further argued that to release the pleadings relating to the proceedings when the implementation of the settlement had not yet concluded would be "contrary to the interests of justice". The Council said that to disclose such information could prejudice the negotiation of the section 47 Agreement. It accepted that there had been a delay in having the Agreement signed but said that it expected that this would be finalised "within the next 10 days" i.e. by 1 March 2008. At the date of the drafting of this decision in September 2008 I am advised that the Agreement has still not been signed. According to the Council, it is under an obligation to make the section 47 agreement available to the public when it is finalised.

The Council's position on the information comprising correspondence with its legal advisers is that such communications qualify for legal professional privilege and access should be refused under article 8(a)(iv) of the Regulations. It stated that, notwithstanding the public interest override in article 10 of the Regulations, release of privileged information would be severely prejudicial to the Council and to the execution and implementation of the section 47 Agreement. It said that the Council should be entitled to obtain its own legal advice without fear of this being made public and that such certainty is required for the good and proper administration of Local Government. It also clarified that affidavits on behalf of the Council were not finalised or sworn before the proceedings were struck out.

The Council further submitted that some of the documentation submitted to it by Roadstone as part of the negotiations around the section 47 Agreement was commercially sensitive and that Roadstone had expressly requested that it be kept confidential.

In its letter of 14 May 2008 to the applicant, the Council said that information on the proposed section 47 agreement must be refused where the material is still in the course of completion and that it would not be in the public interest to release this type of information, particularly as it arises out of the High Court proceedings.

In a further submission of 21 May 2008, the Council said that it remained hopeful that the case could be settled. It expressed the view that release of affidavits filed by Roadstone in the Judicial Review proceedings would not be in the public interest until the section 47 Agreement had first been concluded. It said that it expected the Agreement to be signed within 21 days.

Roadstone's submissions

On 29 April 2008, my investigator wrote to Roadstone and invited it to make submissions on the question of whether its interests might be affected by the release of some of the information. In particular, she provided copies of Roadstone's correspondence with the Council and asked that it identify any commercially sensitive material in the relevant documents. She invited it to give details of any harms that it envisaged would result from disclosure of the information and to indicate if any law was relied upon to protect any particular economic interest in that regard. My investigator pointed out that, even if the material was found to qualify for the commercial confidentiality exception in article 9 of the Regulations, it would be necessary to consider whether it should be released in the public interest. She identified some of the public interest factors in favour of disclosure.

In response, Roadstone made a brief submission dated 15 May 2008 in which it stated that the request was invalid because the Hill of Allen Action Group had no locus standi as an applicant under the Regulations. Without prejudice to this, it referred to certain documents which, it said would constitute "commercially and industrially confidential" information and should be refused pursuant to article 9(1)(c) of the Regulations.

Legal Provisions

For convenience, the key legal provisions identified as relevant to this appeal are set out below.

Directive 2003/4/EC

The Directive guarantees a right of access by the public to environmental information held by or for public authorities; the Directive also sets out "the basic terms and conditions of, and the practical arrangements for", the exercise of this right. The Directive has been given effect in Ireland by way of the European Communities (Access to Information on the Environment) Regulations 2007 (S.I. No. 133 of 2007), made by the Minister for the Environment, Heritage and Local Government.

European Communities (Access to Information on the Environment) Regulations 2007

Article 3(1) defines "applicant" as "any natural or legal person requesting environmental information pursuant to these Regulations ".

Article 3(1) of the 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... and the interaction among these elements,

(b) factors, ... affecting or likely to affect the elements of the environment,

(c) measures (including administrative measures)...designed to protect those elements,

(d) reports on the implementation of environmental legislation,

(e) the state of human health and safety ... conditions of human life, cultural sites and built structures ...affected by the state of the elements of the environment...or through those elements, by any of the matters referred to in paragraphs (b) and (c);

Article 8 of the Regulations carries the side heading: "Grounds that, subject to article 10, mandate a refusal". Article 8 includes among the grounds that, subject to article 10, "mandate a refusal" the following provisions:

"8. A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information -

(a) would adversely affect -

.... (iv) without prejudice to paragraph (b), the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts); ".

Article 9 of the Regulations is headed "Discretionary grounds for refusal of information". Article 9(1) provides that a public authority may refuse to make available environmental information where disclosure would adversely affect:

(b) the course of justice (including criminal inquiries and disciplinary inquiries),

(c) commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest, or ...."

Article 9(2) states that a public authority may refuse to make environmental information available where the request -

"...(c) concerns material in the course of completion, or unfinished documents or data..."

The relevant provisions of article 10 provide:

"10. (1) Notwithstanding articles 8 and 9(1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment.

[(2)...]

(3) The public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal.

(4) The grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.

(5) Nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.

(6) Where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion"

Article 14 of the Regulations provides that, in performing functions under the Regulations, public authorities "shall have regard to any guidelines published by the Minister". The Minister has published such guidelines and, to the extent relevant, I have had regard to these guidelines in the course of this appeal.

Analysis and Findings

Preliminary Comments

It will be clear from this decision that the Council failed in a number of respects to comply with the Regulations and the Directive in its processing of the request. In particular, the original decision which makes no reference to public interest considerations or to records being withheld which were not part of the judicial review proceedings. In addition, the Council failed to respond to the internal review application and the long delay in considering the release of further information to the applicant is in conflict with the core objectives of Directive 2003/4/EC. The result of the reconsideration of its position carried out by the Council at my Office's request was notified to the applicant almost four months after it was requested by my Office. In relation to delay, I regret that my Office has not been in a position to finalise this case as quickly as I would have wished. However, having been given indications from the Council at various stages that the case might be capable of settlement through release of at least some of the information sought, my staff spent considerable time and effort in working towards facilitating such settlement until it became clear that a formal, binding ruling was necessary.

Locus Standi

Roadstone's position is that The Hill of Allen Action Group is not a natural or legal person within the definition of "an applicant" in the Regulations. It argues that the request made is invalid on the basis that the persons making it have no standing under the Regulations. Accordingly, I have to decide first whether the Action Group is properly an applicant whose appeal I can adjudicate upon under the Regulations.

The definition of applicant in article 3 of the Regulations as set out above is similar to that in Article 2 of the Directive. The original request to the Council and all subsequent written correspondence to my Office, including the signed appeal of 17 January 2008, were made by a named individual described as Chairperson of the Hill of Allen Action Group. An address and telephone number were provided. Accordingly, since it was dealing with an identifiable individual, my Office did not consider it necessary to establish whether the group was limited by guarantee. A somewhat similar situation arose in a case dealt with by the High Court in National Maternity Hospital v the Information Commissioner [2005] No. 49 MCA] (judgment delivered 30 March 2007), in which Quirke J found that I (as Information Commissioner) was entitled to accept an application from a "person" who was a requester under the Freedom of Information (FOI) Acts in circumstances where the group concerned had not been incorporated as a company at the time of the FOI request. However, Judge Quirke said that had the application for review been made by the company limited by guarantee which the group subsequently became, it is unlikely that I would have been empowered to conduct the review.

Furthermore, the High Court (see, for example, Sweetman v An Bord Pleanála [2007] IEHC 153) has held that European directives fall to be interpreted in the light of the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention). Article 4 of the Convention sets out a framework through which members of the public can gain access to environmental information. The Convention defines "the public" as meaning "one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups". "The Aarhus Convention: an Implementation Guide" [ECE/CEP/72] states that the definition of "public" applies the "any person principle". The term public is not subject to any conditions so that the issue of whether a particular member of the public is affected by or has an interest in the matter is not significant where rights under the Convention apply to the public.

I consider that nothing in the Regulations, the objectives of Directive or the Aarhus Convention allows me to deem this appeal invalid on the grounds put forward by Roadstone. I note also that at no stage did the Council query the standing of the applicant.

Does the Information come within the Definition of Environmental Information?

Although it did not pursue this argument in its most recent submissions, I have considered the Council's view that the information on the Judicial Review proceedings is not "environmental information". The Council said that the court proceedings represent a challenge to the Section 261 registration process as opposed to constituting part of the registration process itself. It applies this distinction to the definition of environmental information and argues that it is information on a measure (i.e. on the registration process) which constitutes environmental information and not information in connection with or arising out of a measure (i.e. the Judicial Review proceedings).

Even if I were to accept the narrow definition of "information on a measure" put forward, I consider that paragraph (f) of the definition must also be considered. It extends the definition of environmental information to include the direct and indirect effects of the factors (substances, noise, waste, emissions, discharges) in paragraph (b) of the definition on human health and conditions of human life. Essentially, this is a planning case and all of the information, including that on the Judicial Review relates directly to the operation of and regulation of quarrying at a particular site. My conclusion might be different if the content or purpose of the information on the judicial review proceedings was remote from the effect of the quarry on the environment. In other words, I consider that matters - including litigation arising from the control of the operation of the quarry - are sufficiently connected to factors and measures which affect the environment to be classed as environmental information in this particular case.

Legal Professional Privilege - Article 8(a)(iv)

The Council's position is that communications between it and its legal advisers in connection with both the preparation for legal proceedings and confidential advice in relation to the drawing up of the section 47 Agreement with the developer are exempt from disclosure under article 8(a)(iv) on grounds of legal professional privilege. The applicant accepts that the Council is entitled to rely on this provision in relation to some of the information. However, in the interests of certainty, I think it is best that I make a formal ruling as to which of the documents qualify for legal professional privilege in this case.

Legal professional privilege enables the client maintain the confidentiality of two types of communication: confidential communications made between the client and his/her legal adviser for the purpose of obtaining and/or giving legal advice, and communications made between the client and a legal adviser or the legal adviser and a third party or between the client and a third party, the dominant purpose of which is the preparation for contemplated pending litigation. Both types of communication are found on the Council's files.

I find that the documents listed below, including some internal communications and draft documents disclosing legal advice, meet the test for legal professional privilege under the common law rule (incorporated into the section 22(1)(a) exemption in the Freedom of Information Acts 1997-2003) so that the Council is entitled to rely on article 8(a)(iv) in relation to them.

The Public Interest

Article 8(a)(iv) is subject to the public interest test at article 10(3) of the Regulations. Given the importance that the courts have placed on the confidentiality of the lawyer-client relationship, I think that there would have to be exceptional public interest factors at play before legal professional privilege could be set aside. Clearly, the Directive and the Regulations envisage that circumstances will arise where information qualifying for legal professional privilege would be released in the public interest. However, given my finding below that other records should be released which explain the background and progress since the proceedings in this case, I think that the public interest in the applicant knowing the detailed exchanges between the Council and its lawyers does not outweigh the public interest in upholding legal professional privilege in this particular instance.

Documents Qualifying for Legal Professional Privilege

Executive Planner's File: 4 - 12, 14-17, 19, 21- 24, 26, 30, 33, paragraph 3, page 11 of 34, 35, 37 - 48, 51-52, 62, 63.

Judicial Review File: hand-written notes on 1; 2, 11, 12, 14, 16-17, 19-20, pages 1-2 of 21, 22-26, 28-29 (duplicate), 31-32, 40, 43, 45, 47, 50- 54, 57, 64.I will now go on to consider the remainder of the information in the context of the various provisions of the Regulations cited by the Council.

Legal Advisor's File: 1-3.

Article 9(1)(b) - the Course of Justice

I note that this was the sole ground for refusal advanced in the Council's original decision.

Apart from the legal advice and preparation for litigation information discussed above, the information forwarded by the Council includes copies of an affidavit and Statement of Claim filed by Roadstone in the Judicial Review proceedings which were struck out. I consider that the Council has failed to make any case to justify its use of the ground for refusal at article 9(1)(b) of the Regulations. The proceedings are no longer in existence and it is difficult to see how the course of justice would be adversely affected by the release of the information in these circumstances. It is important to note that article 9(1)(b) requires that the course of justice (including criminal inquiries and disciplinary inquiries ) would have to be adversely affected before this exception can be used to withhold environmental information. I doubt if this exception could properly apply to these particular records even if the case had gone ahead in the courts. The affidavits filed would, presumably, have been opened to the court in the course of the hearing. The content could have been made publicly available through the hearing itself and through media coverage of the arguments made. In that event, adverse affect through disclosure under the Regulations would not arise. More generally, I take the view that to adversely affect the course of justice, one would have to cause some procedural or other unfairness that could prejudice the court's decision.

The information in the affidavit and Statement of Claim is not in a record created by the court nor is disclosure to the general public prohibited by court order.

In its most recent submission, the Council says that it would be "contrary to the interests of justice" to release documents relating to the ongoing settlement discussions on the Section 47 agreement. If this is intended to be an argument that article 9(1)(b) should apply to that information, I am not convinced by it. The process of agreeing a settlement between the parties is not being pursued "in the course of justice" as required by article 9(1)(b); there are no civil or criminal proceedings in train. Therefore, it is not necessary to consider whether disclosure of such information would have an adverse effect on the course of justice.

The Public Interest

As I have found that article 9(1)(b) does not apply, it is not, strictly speaking, necessary for me to consider whether the public interest would be better served by disclosure under article 10 of the Regulations. However, while I make no formal findings on the matter, I wish to make some comments on the submissions of the Council in which it is argued that release of information contained in the Roadstone affidavit and in other documents might "jeopardise the ongoing implementation of the settlement and affect "the compromise being reached".

If this is to be construed as an argument that the public interest in withholding the information is stronger than the public interest in disclosure, I am not convinced by it. There is a strong public interest in the public being aware how a quarry operation is regulated particularly given the potential emissions and effects that the operations could have on the environment. In the normal course of events, the applicant would have been in a position to inspect a planning application, make submissions and have these considered by the planning authority. It would have had access to an Environmental Impact Statement and would have had appeal rights to An Bord Pleanála if it considered that the Council's conditions were insufficient to protect the environment. As things stand, the Council has, apparently, decided that it cannot exercise its powers under section 261 of the Planning and Development Act 2000 to have a planning application and EIS submitted and that a section 47 agreement with Roadstone will be drawn up instead. It is not for me as Commissioner for Environmental Information to comment on the merits of that approach. Nonetheless, I draw attention to the fact that the Section 47 Agreement process has being going on for over a year. The public interest in release of information might be weaker if the public had already had an opportunity to be informed of the reasons for decisions taken and for the delay in regulating the operation.

In relation to versions of material which may differ from the final agreement, the position is that some of those drafts disclose legal advice received and come within the legal professional privilege exception dealt with above. In relation to the remainder, I do not see how disclosure of such information would hinder the reaching of agreement. Presumably, further negotiations have generated additional draft proposals since September 2007 which information is not within the scope of this review. I consider that the applicant should recognise parts of the documentation as drafts which may inform the final agreement. I do not think it is reasonable or permissible within the provisions of the Directive for all of this type of environmental information about the operation and regulation of the quarry to be withheld indefinitely. The public interest in participation by affected persons in environmental issues and in the dissemination of environmental information is strengthened by the provisions of Directive 2003/4/EC.

Article 9(1)(c) - Commercial or Industrial Confidentiality

Neither Roadstone nor the Council have responded in any detail to my Office's request that they identify the information for which the claim of confidentiality is made together with the adverse affect that disclosure of the information would have on commercial or industrial confidentiality. Neither has the required legal provision "to protect a legitimate economic interest" been identified. Nonetheless, I am prepared to accept that disclosure of the extent of the quarry's reserves might have an adverse affect on the Company vis á vis its competitors or otherwise. The applicant has agreed that the parts of the documents which disclose such information can be excluded from any information released.

In relation to other information in documents submitted by Roadstone, I am not convinced that the information has the necessary quality of confidence having regard to the law of confidence. Given that no specific national or Community law has been identified, it seems to me that for article 9(1)(c) to apply, disclosure of the records concerned must amount to a breach of an equitable duty of confidence. The correct tests to apply in deciding whether there is a breach of an equitable duty of confidence are set out in the case of Coco v. A. N. Clark (Engineers) Limited F.S. R. 415 (which is accepted as reflecting the Irish law on the subject - see, for example, House of Spring Gardens Limited v. Point Blank Limited [1984] I.R 611) in which Megarry, J. stated as follows:

'Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself...must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.'

I do not believe that the type of information including factual information about the site of the development and information on methods of operation including, inter alia, control of noise and dust emissions which would normally be required and open to public inspection in a planning application or in an Environmental Impact Statement can be treated as "secret" in this context. Indeed, I note there is, under article 10(1) of the Regulations, a prohibition on refusing a request for environmental information where the request relates to information on emissions to the environment.

Accordingly, subject to the exclusion of details of the quarry's reserves in parts of the information identified in my decision set out below, I find that article 9(1)(c) does not apply to the information in this case.

Article 9(2)(c) - Material in the course of completion

In considering whether the Council is justified in exercising its discretion under article 9(2)(c) of the Regulations to withhold information (i.e. those documents not excluded from release on the basis of legal professional privilege), I must address whether the material around the section 47 Agreement is "in the course of completion". My conclusion, having had regard to the content of the material and to "The Aarhus Convention: an Implementation Guide" is that the documents concerned are not being actively worked on by the Council. Although they have not been incorporated into a final agreement, it seems to me that they are complete in themselves and that further documents and drafts of documents have been created as part of the ongoing process since the making of the request for the information. If, for any reason, the section 47 Agreement was never signed, it could not have been the intention that this exception would apply to withhold the information indefinitely. In coming to this conclusion, I have taken into account the requirement at article 10(4) of the Regulations that the grounds for refusal shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.

It is important to note that, where a public authority refuses a request because it concerns material in the course of completion, it is required under article 10(6) of the Regulations to inform the applicant of who is preparing the material and the estimated time of completion. The Council's refusal did not do this. Indeed, its decision did not make any reference to material being in the course of completion until its letter of 14 May 2008 to the applicant when it had undertaken a late reconsideration of its position at the request of my Office. My Office was informed at various times by officials of the Council that completion of the section 47 agreement was imminent. While the delay in reaching agreement with Roadstone may have been outside of the Council's control, the fact is that estimates of the completion date - however inaccurate these proved to be - were not given to the applicant. Accordingly, even if I were to accept that the request concerns material in the course of completion or unfinished documents or data, I do not consider that the Council is entitled to rely on this exemption.

Having decided that article 9(2)(c) does not apply, there is no need for me to consider here the public interest arguments in favour of release or withholding of the information.

Decision

In accordance with article 12(5) of the Regulations, I have reviewed the decision of Kildare County Council in this case. I hereby annul the Council's decision and direct that the information requested be made available to the Hill of Action Group with the exception of the following parts:

Executive Planner's File: 4 - 12, 14-17, 19, 21- 24, 26, 30, 33, paragraph 3, page 11 of 34, 35, 37 - 48; second and third paragraphs of page 2 (letter) of 49; 51-52, 62, 63.

Judicial Review File: hand-written notes on 1; 2, 11, 12, 14, 16-17, 19-20, pages 1-2 of 21, 22-26, 28-29 (duplicate), 31-32, 40, 43, 45, 47, 50- 54, 57, 64; second and third sentences of letter in 65; second sentence in paragraph 2, page 1 of 69; second sentence in paragraph 2, page 1 of 70; paragraph 3.3, including table, as far as "The Aerial..."in page 4 of 70; second sentence in paragraph 2 in page 5 of 70; headings 2005-2014 in pages 6-7 of 70.

Legal Advisor's File: 1-3.

As the request related to information on the Allen quarry only, material relating to the other quarry mentioned in some of the documents should be redacted from the copies to be released.

Under article 12(7) of the Regulations, the Council is obliged to comply with my decision "within three weeks after its receipt". Where a public authority fails to comply with my decision within that time, article 12(8) provides that I may apply to the High Court for an order directing compliance with that decision.

Appeal to the High Court

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Emily O'Reilly

Commissioner for Environmental Information

22 September 2008