Right To Know complaint to Aarhus compliance committee

Last month, TheStory.ie’s parent body Right To Know instructed FPLogue solicitors to write a complaint to the Aarhus Convention Compliance Committee (ACCC) in Geneva – the UN body empowered to oversee implementation of the Aarhus Convention. The complaint forms part of Right To Know’s objective to push for greater public rights to access information.

The complaint concerns the overwhelming decision-making delays both from the Office of the Commissioner  for Environmental Information (OCEI) and from judicial processes in Ireland in relation to requests for access to environmental information, and any appeals that result from those requests. These lengthy delays are, we believe, a breach of the Aarhus Convention which Ireland ratified in June 2012.

You can read our complaint here. 

If you support our work, subscribe to us here.

What is the Aarhus Convention?

The Aarhus Convention is pretty radical – which is why we like it. We strongly encourage people to read the Convention in full. The Wikipedia definition is good:

The UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, was signed on 25 June 1998 in the Danish city of Aarhus. It entered into force on 30 October 2001. As of March 2014, it has 47 parties—46 states and the European Union.[1] All of the ratifying states are in Europe and Central Asia…

The Aarhus Convention grants the public rights regarding access to information, public participation and access to justice, in governmental decision-making processes on matters concerning the local, national and transboundary environment. It focuses on interactions between the public and public authorities.

What is the ACCC?

Under Article 15 of the Convention, the Meeting of the Parties (ie countries party to the Convention), established a compliance committee which among other things accepts complaints from members of the public or NGOs concerning non-compliance by States with the terms of the convention.

The ACCC is composed of independent lawyers acting on a pro-bono basis. They make recommendations on compliance or non-compliance based on the complaints they receive, or on their own initiative. As the UN guidance states:

The compliance mechanism of the Aarhus Convention is unique in international environmental law, as it allows members of the public to communicate their concerns about a Party’s compliance directly to a board of independent experts, the Compliance Committee, who have the mandate to examine the merits of the case. However, the Committee cannot issue binding decisions, but rather may make recommendations either to the MoP, or, in certain circumstances, directly to individual Parties.

The committee makes recommendations to the MoP, and in turn the MoP can enforce the Convention through mechanisms, such as:

a) Provide advice and facilitate assistance to individual Parties regarding the implementation of the Convention;
b) Make recommendations to the Party concerned;
c) Request the Party concerned to submit a strategy, including a time schedule, to the Compliance Committee regarding the achievement of compliance with the Convention and to report on the implementation of this strategy;
d) In cases of communications from the public, make recommendations to the Party concerned on specific measures to address the matter raised by the member of the public;
e) Issue declarations of non-compliance;
f) Issue cautions;
g) Suspend, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, the special rights and privileges accorded to the Party concerned under the Convention;
h) Take other non-confrontational, non-judicial and consultative measures as may be appropriate.

What is the issue you are complaining about?

Delays. As we state in our submission, there are lengthy delays in getting decisions from appeals bodies in Ireland. In the case involving us and NAMA, it took more than 5 years for a final decision to be issued, and even then it was still only a preliminary matter. We believe this to be a breach of Ireland’s obligations under international law – Article 9 mandates that parties to the Convention must:

… provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible of other bodies, shall be publicly accessible.

We believe Ireland to be in breach of the “timely” component of the Convention – the focus of our complaint. We believe Ireland is obliged to remedy this lack of timeliness in appeals processes related to environmental matters.

Why is this important?

Time is extremely important when it comes to accessing information, and specifically information in relation to the environment. Delays in appeals have knock-on affects on how civic society understands environmental issues, or acts on environmental issues that are time sensitive (think pollution or emissions for example).

What will happen now?

The ACCC has accepted our communication (2016/141) and we will participate in the upcoming process. The communication will now be reviewed for admissibility by the Compliance Committee at its 54th meeting to be held in Geneva between 27 and 30 September and if it is found to be admissible, the Committee will invite comments from the Ireland and others and will investigate the allegations of non-compliance.

NAMA vs OCEI Supreme Court judgment

Here is a copy of the judgment in NAMA vs Commissioner for Environmental Information, given this morning.

Our statement:

“We welcome the decision of the Supreme Court today finding that NAMA is a public authority subject to the Access to Information on the Environment Regulations 2007/2011. We are thankful that the Office of the Commissioner for Environmental Information agreed with our interpretation of the law when it made its initial decision in 2011, and subsequently defended that decision through the courts.

We regret that NAMA did not handle the issue better at the outset -as the ruling itself noted – and that it has taken nearly 2,000 days for what was a preliminary matter to be decided, involving significant expenditure of public money. However the public now has greater clarity on the applicability of the Regulations, and the public’s right to know has been broadly vindicated by the Supreme Court. We look forward to NAMA fully implementing its obligations under the AIE Regulations 2007/2011.”

The key paragraph:

If the law stood as it was at the time of the High Court’s decision I would have considered it necessary to refer a question to the ECJ as to whether a body such as NAMA was a public body for the purpose of the exercised public administrative functions. The definition section of the Directive is unclear, and it is also necessary to consider the Aarhus Convention. However the decision in Fish Legal provides an authoritative interpretation of the Directive, and moreover does so in the context of a common law system. Applying that test it is clear that NAMA is indeed a public authority exercising public administrative functions. Although like the water companies in Fish Legal, it is obliged to act commercially, it is undoubtedly vested with special powers well beyond those which result from the normal rules applicable in relation between persons governed by private law. If anything, the case is clearer here. The water companies in Fish Legal were companies established in private law whereas NAMA is established pursuant to a statute which confers upon it substantial powers of compulsory acquisition, of enforcement, to apply to the High Court to appoint a receiver and to set aside dispositions. The Act also restricts or excludes certain remedies against NAMA. The establishment and operation of NAMA is a significant part of the executive and legislative response to an unprecedented financial crisis. The scope and scale of the body created is exceptional. Indeed if it were not so it would not be in a position to carry out the important public functions assigned to it in the aftermath of the financial crisis. Accordingly, for the reasons set out above, I would dismiss the appeal.

NAMA decision imminent

Back in February 2010, we sent a request to NAMA seeking certain information under the Access to Information on the Environment (AIE) Regulations. NAMA had just been established. We sent a similar request to Anglo Irish Bank. Both rejected our requests on the basis that they did not see themselves as public authorities under those regulations. We disagreed.

For 5 years the case has wound its way through the system, from a Commissioner ruling in September 2011 (which went in our favour), to High Court hearings in 2012 and two High Court judgments in early 2013 (the judge ruled against NAMA on both the substantive issue and on the issue of a stay, pending a Supreme Court appeal). We had to seek, and were granted, an expedited hearing after NAMA appealed both. There were almost two days of hearings in the Supreme Court in 2014, before five judges.

On June 23 they will issue their judgment.

The issue to be decided, among others, is what the term “and includes” means in the Regulations, and whether NAMA/Anglo, by virtue of being listed in 3(1) under the definition of public authority at parts vi) and vii), are in fact public authorities.

If the court rules as we believe it should, then NAMA becomes a public authority under AIE, and all bodies listed in parts i) to vii) of 3(1) of the Regulations become de facto public authorities (below), and we will finally have legal clarity.

(i) a Minister of the Government,

(ii) the Commissioners of Public Works in Ireland,

(iii) a local authority for the purposes of the Local Government Act 2001 (No. 37 of 2001),

(iv) a harbour authority within the meaning of the Harbours Act 1946 (No. 9 of 1946),

(v) the Health Service Executive established under the Health Act 2004 (No. 42 of 2004),

(vi) a board or other body (but not including a company under the Companies Acts) established by or under statute,

(vii) a company under the Companies Acts, in which all the shares are held—

(I) by or on behalf of a Minister of the Government,

(II) by directors appointed by a Minister of the Government,

(III) by a board or other body within the meaning of paragraph (vi), or

(IV) by a company to which subparagraph (I) or (II) applies, having public administrative functions and responsibilities, and possessing environmental information;

An Garda Siochana, transparency and access to information

An Garda Siochana have been subject to some significant public scrutiny of late, in terms of how accountable and transparent the organisation is.

This blog has long held the view that the force should be subject to the Freedom of Information Act. The current FOI bill before the Oireachtas contains provisions that will include the force under the Act for the first time, but only in relation to “administrative” records.

However, like we believe NAMA is subject to the separate Access to Information on the Environment (AIE) Regulations, likewise we believe An Gardai Siochana to also be subject to those regulations.

To that end, last year I sent a request to An Garda Siochana seeking certain environmental information. As the Gardai have no AIE officer (despite having an obligation to have one), I sent my request to their press office. They replied:

Applications for Access to Information on the Environment should be made to:

Information Officer,
Departmental Strategy Unit,
Department of the Environment, Community and Local Government,
Newtown Rd,

This response demonstrates just where we are when it comes to AIE in Ireland (and our international obligations under the Aarhus Convention). The Gardai were telling me to ask the Department of the Environment about information they held, and that they were legally obliged to respond to. I politely responded:

I’ve looked at the Regulations and this matter should should be dealt with by someone at An Garda Siochana, as the Department of Environment is not related to the request.

Perhaps you could point me to the person in charge of AIE requests at An Garda Siochana?

The Department of Environment doesn’t hold the information I’m requesting (it is its own public authority, as are all other the Departments, and authorities like Coillte, the Central Bank, the ESB, Bord Gais etc).

The information you quote is actually only related to AIE requests specifically to the Department of the Environment.

An Garda Siochana is a public authority for the purposes of the Regulations, so it is obliged to answer requests for environmental information (AIE requests). The process is similar in nature to Freedom of Information requests (though I know An Garda Siochana is not yet subject to FOI).

As the authority in question, there is one month for the requested information to be released, or rejected, citing any relevant exemptions under the Regulations.

Kind regards

Precisely one month later, the force responded to my request, and refused access citing “national security” and commercial sensitivity. I immediately appealed to internal review, as is my right under AIE Regulations. The Gardai failed to reply.

On the basis of deemed refusal, I then appealed to the Office of the Commissioner for Environmental Information, which then commenced an investigation into the force’s failure to respond to my request.

Following the commencement of this investigation I was then contacted separately by a member of the force at Garda HQ. On November 26 2013 I received an email stating:

I am directed by Assistant Commissioner Jack Nolan to refer to your request for a review of the decision of the Garda Press Officer following your request for information from An Garda Síochána.

The Commissioner has directed that Assistant Commissioner Nolan conduct this review. I am to advise that Assistant Commissioner Nolan is out of the country until 19 December 2013 but he would welcome an opportunity to discuss the above matter with you. In this regard I would be obliged if you could advise of suitable dates to meet with Assistant Commissioner Nolan.

This request is highly unusual, without the participation of the Information Commissioner’s office. Normally a settlement is reached via negotiation with the OCEI, not independently of it. I therefore saw little benefit to meeting with Assistant Commissioner Nolan, and replied:

Thank you for your email of November 26.

I am a little puzzled! What is the precise purpose of the meeting?

My understanding is that the OCEI has commenced an investigation following An Garda Siochana’s failure to answer an appeal for internal review in relation to an AIE request. As such I’m not sure what assistance, as the requester, I can provide in relation to the OCEI investigation.

Kind regards

To this I received no reply. The investigation is ongoing.

In light of this I then sent a second request, seeking:

1) Any and all information relating to measures carried out by An Garda Siochana to implement its legal obligations under the Access to Information on the Environment (AIE) Regulations 2007/2011. Specifically with reference to Section 5 (1) to (5) of the Regulations, what measures have an Garda Siochana carried out in particular vis-a-vis:

A public authority shall:
(a) inform the public of their rights under these Regulations and the Directive and provide information and guidance on the exercise of those rights, and
(b) make all reasonable efforts to maintain environmental information held by or for it in a form or manner that is readily reproducible and accessible by information technology or by other electronic means.,
(c) ensure that environmental information compiled by or for it, is up-to-date, accurate and comparable,
(d) maintain registers or lists of the environmental information held by the authority and designate an information officer for such purposes or provide an information point to give clear indications of where such information can be found.

Kind regards

I received a reply to this on December 19:

An Garda Síochána have responded to and are currently liaising with the Office of the Commissioner for Environmental Information. This matter is now being dealt with by the Office of the Commissioner for Environmental Information and all queries should be addressed to that office.

Incorrect, I pointed out. This was a new and separate request:

Thank you for your email.

However, this is new and separate request to the one currently under appeal with the OCEI. It was sent on November 4, and no reply was received by December 4.

There is a one month deadline to issue an internal review decision under the Regulations in relation to this request.

Kind regards

Following another month passing by, and time limits being breached, I then received a follow up email:

The formulation of a policy for An Garda Síochána in relation to its obligations under the Access to Information on the Environment (AIE) Regulations 2007/2011 has commenced.

As previously advised, Assistant Commissioner Jack Nolan is willing to meet with you to discuss whatever issues you wish to raise.

Any future correspondence in the matter should be forwarded directly to Assistant Commissioner Nolan commissioner_ST@garda.ie

Kind regards,

This response does not answer my original request. And this is where we are now. As far as I can see it is now clear the An Garda Siochana have essentially appointed Assistant Commissioner Nolan as their AIE officer, and all public requests seeking environmental information should be directed to his office.

So goes the current state of Aarhus legal obligations in Ireland. Our own police force is failing to enforce and implement a law from 2007, and amended in 2011. And if this is how they handle AIE requests, to which they’ve been subject to several years – how should we expect FOI to work in relation to them once the new bill passes?

(FYI Irish citizens can now (as of September 2013) complain about the Irish implementation of the Aarhus Convention directly to the Aarhus Convention Compliance Committee (ACCC) in Geneva)

Supreme Court grants expedited listing in NAMA case

In another turn of events relevant to Aarhus Convention and access to information nerds, today Chief Justice Susan Denham granted an expedited listing for NAMA vs Office of the Commissioner for Environmental Information (OCEI).

The AIE request in the matter was sent by me in early 2010, and 44 months later the issue at hand – whether NAMA is a public authority for the purposes of the Regulations – is still not answered. We argued that such a delay was at odds with the Aarhus Convention’s requirement for a timely judicial process. For its part, counsel for NAMA Brian Murray SC made similar arguments, saying that NAMA had a significant interest in the case and the timeliness of the process was at issue. NAMA applied for an expedited listing – in a slight change of tack from previous hearings. In a submission made in the Supreme Court case earlier this year, we put it to the court that NAMA had in fact frustrated the process by taking a narrow view of the initial request (as the High Court had determined) and had acted in bad faith.

Chief Justice Denham said that the case would be heard in this term (before Christmas) if a date became available, but failing that it would be early in the new term – most likely January or February of 2014. Increasingly the Aarhus Convention is being noted in Irish court cases, and we emphasised in our submission that the Aarhus Convention was essentially being breached due to the delays in this case.

This is the submission we handed to the Chief Justice this morning outlining arguments in relation to delays relevant to Aarhus cases.

First protective costs order under Aarhus Convention granted by High Court

Hedigan J granted a protective costs order to an applicant wishing to use Section 160 of the Planning and Development Act to prevent alleged unauthorised development at a waste facility close to her home.

Protective costs orders originate from Article 9 of the Aarhus Convention which provides that litigation in certain environmental matters should not be prohibitively expensive. This provision was implemented in Ireland through Part 2 of the Environment (Miscellaneous Provisions) Act 2011 which protects an applicant from having costs awarded against them should they be unsuccessful.

This is the first time in Ireland that such an application has been successful and importantly the Court clarified the information that should be provided to ground a motion for a protective costs order.

The Court referred specifically to Article 9 of the Aarhus Convention as well as the recent ECJ judgment in Edwards -v- Environment Agency (Case C-260/11) which clarified the meaning of prohibitively expensive under European law.

This judgment is significant not just in terms of planning law but also for access to environmental information law since persons appealing to the High Court against decisions of the Commissioner for Environmental Information may also apply for protective costs orders.

Hunter -v- Nurendale Limited t/a Panda Waste

A NAMA update

The stay on the judgment of Judge Mac Eochaidh has been continued until October 2013, where the substantive issue of “and includes” will be heard before the Supreme Court.

This is a victory of sorts, as it was quite possible that the case might not have been heard for several years – it will now be heard in just over 4 months time. We argued strongly about the right to a timely process given by the Regulations and Aarhus.