M50 Skip Hire & Recycling Ltd. ("the Firm"), a Dublin-based waste collection company, lost its High Court challenge to the Commissioner for Environmental Information’s (''the Commissioner'') July 2019 decision permitting a man, Mr. XY, access to certain waste destination data.
In his judgment issued 2nd September 2020, Mr. Justice Mark Heslin rejected the challenge by the Firm that their interest in preserving industrially confidential information outweighed the public interest in disclosure.
Waste collection permits require the permit holder to maintain information concerning their waste collection activity, for example the quantity of waste collected, where it was collected from and delivered to. The information is then provided to the relevant designated authority through an Annual Environmental Report ("AER"), which provides a concise summary of the environmental performance of the permit holder for the previous reporting year, as well as a record of on-going improvements on the licensed site.
In June 2018 Mr. XY requested a copy of the latest AER submitted by the Firm from Fingal County Council (the Council). The Council provided Mr. XY with part-access to the AER, i.e. certain information in the 2017 AER provided to Mr. XY was redacted, including the waste destination data. This was based on reasoning that the information was commercially or industrially sensitive and fell under the exemption in Article 9(1)(c) Access to Information on the Environment Regulations ("AIE"), such that a public authority may refuse to make environmental information available where disclosure would adversely affect commercial or industrial confidentiality.
In July 2018, Mr. XY requested an internal review of the Council's decision to block the waste destination data. He maintained that it was in the public interest for such information to be disclosed. By August the Council had conducted its internal review and affirmed the decision to refuse access under Article 9(1)(c) AIE. Mr. XY appealed the refusal of access to the Commissioner for Environmental Information on 24 August 2018.
Decision of the Commissioner-CASE CEI/18/0027
The Commissioner held that although Article 9(1)(c) AIE did apply to the information, the public interest in disclosure outweighed the interests served by refusal. Such disclosure would facilitate the making of informed decisions about the way in which waste facilitators opt to dispose of their waste, enhancing public scrutiny and the identification of gaps in enforcement. It was acknowledged that disclosure would assist in addressing the public's lack of confidence in Ireland’s ability to manage waste properly.
Challenge before the High Court
The Firm challenged this decision in the High Court, submitting that a "different" outcome should have been reached and that the "wrong" balance was struck.
In affirming the decision of the Commissioner, the court found:
- that the Commissioner's decision was lawfully made, with the evidence put forward failing to indicate otherwise;
- the Firm failed to specify how disclosure would prejudice its competitive position;
- the identity of Mr. XY and his motivation for seeking environmental information were not relevant issues in the case.
- the Commissioner had made clear the exception from disclosure provided for in Article 9(1)(c) was subject to weighing up the public interest in disclosing the waste destination data.
The court found that in weighing up the balance between disclosures made in the public interest against maintaining the confidentiality of commercially sensitive information, it is appropriate to apply an additional weight to the disclosure of environmental information, due to the fact that such disclosures facilitate public scrutiny in areas with a high environmental impact.
While cases will be assessed on their own merits, firms in the waste industry must be prepared to demonstrate in a tangible way the expected material loss or gain that might result from the disclosure of commercially confidential information. There is a strong public interest in optimising accountability and transparency in the way in which agents of the State carry out their regulatory functions, such as AERs, and firms must be in a position to demonstrate that the protection of commercial confidentiality in order to protect their economic interests outweighs the public interest in any such instance.
A link to the full judgment can be found here.