In the recent decision of M50 Skip Hire & Recycling Limited v Commissioner for Environmental Information [2020] IEHC 430, a waste collection company failed in its High Court challenge to prevent the release of its commercially sensitive waste destination data under the European Communities (Access to Information on the Environment) Regulations 2007-2018 (the AIE Regulations). The High Court ruled that the public interest in disclosure outweighed their interest in preserving commercially or industrially confidential information.

Background

M50 Skip Hire & Recycling Limited (M50 Skip Hire) holds a permit to collect waste as part of its business. Waste collection permit holders are required to furnish certain information to their local County Council as part of an Annual Environmental Report (AER).

On 16 June 2018, a request was made to Fingal County Council (the “Council”) under the AIE Regulations for M50 Skip Hire’s 2017 AER. The Council provided a redacted copy of the AER, but refused access to certain information including, in particular, waste destination data (“WDD”) The Council found that the WDD was exempt as it contained commercially or industrially confidential information under Article 9(1)(c) of the AIE Regulations. On internal review, the Council affirmed its original decision and in August 2018, the requester appealed the matter to the Commissioner.

Decision of the Commissioner

The Commissioner set aside the Council’s decision, finding that while Article 9(1)(c) of the AIE Regulations did apply to the WDD, the public interest in disclosure outweighed the interests in refusal. The Commissioner noted that there was a substantial public interest in the disclosure of the WDD as this would facilitate further public scrutiny on waste management and may lead to the identification of gaps in enforcement. The Commissioner also stated that enabling waste producers to track the destination of their waste would allow them to make informed decisions about which waste collectors to use.

Decision of the High Court

M50 Skip Hire challenged the decision in the High Court. Among other grounds, it argued that the Commissioner got the public interest balance “wrong” and that the Commissioner should have followed a previous decision refusing access to WDD.

In rejecting the appeal, the Court made numerous findings that have a wider application to AIE requests generally, and re-confirmed some of the fundamental principles of the AIE access-regime. These are as follows:

• Precedents: Each case must be decided on its own merits and the Commissioner is not bound to follow its previous decisions.

• The importance of third parties fully engaging in Commissioner appeals: Despite being provided with three chances to give detailed submissions to the Commissioner, M50 Skip Hire’s brief submissions only contained a blanket claim that the WDD was commercially sensitive and its release would adversely impact its business. However, it failed to provide any detail on how release would affect the Company.

• Requester identity: There is no statutory obligation on the Commissioner to identify the requester to affected third parties.

• Requester motivation: In accordance with Article 6(2) of the AIE Regulations, a requester is not required to state any interest in making the request. Therefore, the requester’s motivation or intent in making the request is not relevant.

• General rule of disclosure: As confirmed by the European Court of Justice in Case C71/10, Office of Communications v. Information Commissioner (2011), disclosure of information is the general rule and the grounds for refusal should be interpreted restrictively.

• Discretion concerning public interest factors: No statutory definition of “public interest” is contained in the AIE Regulations or the corresponding EU Directive. Therefore, the relevant public authority enjoys a discretion in weighing up, in each individual case, the public interest served by disclosure against the interest served by refusal of the environmental information at issue.

• Scope of Commissioner appeal: Under Article 12(5), Commissioner appeals must be carried out “in accordance with” the AIE Regulations. Therefore, the provisions of Article 9(1)(c) and Articles 10(3) and (4) clearly apply to the Commissioner when conducting its review of public authority decisions. It is also clear from Article 12 that the Commissioner enjoys a wide jurisdiction to conduct a fresh review of a request. The Commissioner must make a decision in light of the facts and circumstances before him at the date of the review.

• Nature/Scope of High Court appeal: The Court’s role is not to carry out a fresh review of the matter. It is limited to an appeal on a point of law. Therefore, it is not for the Court to decide if the Commissioner got the balance of public interest considerations wrong. The Oireachtas has entrusted the balancing exercise to the Commissioner, and it is not for the Court to substitute its own findings where it is clear that the Commissioner’s decision was reasonable, underpinned by evidence and not based on an error in law.

Conclusion

This decision reconfirms some of the most fundamental principles of AIE law, as well as the significance of their application to third parties whose environmental information is held by public authorities.

It also clearly demonstrates how important it is for affected third parties to engage fully with both the relevant public authority and the Commissioner, if necessary, if they are consulted on an AIE request and are concerned about the release of their information, as well as the level of detail required when doing so.

For more information and expert guidance in all related matters, contact a member of our Public, Regulatory and Investigations team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.