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Waste destination data no longer confidential - The decision of M50 Skip Hire & Recycling Limited V The Commissioner for Environmental Information (2020) (the “M50 Skip Case”)

  • Ireland
  • Corporate
  • Environment

23-09-2020

1 BACKGROUND

1.1 M50 Skip Hire & Recycling Limited (the “Company”), a waste collection operator in Dublin, lost its recent High Court challenge of a decision of the Commissioner for Environmental Information (the “Commissioner”) to grant access to certain of the Company’s waste destination data to a member of the public. While the Company ultimately lost its action, the M50 Skip Case does provide some useful commentary for companies and businesses operating in the waste sector.

1.2 Waste collection operators are required, as a condition of their waste collection permit, to retain certain records relating to their waste collection activities, including, but not limited to, waste destination data. Such information is compiled and furnished to the relevant local authority in the form of an annual environmental report (the “Annual Report”). In 2018, a member of the public, referred to in the M50 Skip Case as “Mr XY”, requested a copy of the Company’s Annual Report from Fingal County Council (“FCC”). Before issuing the Annual Report to Mr XY, FCC redacted parts of the Company’s Annual Report including, the waste destination data. FCC considered the waste destination data to be information that was “commercially or industrially confidential” under the European Communities (Access to Information on the Environment) Regulations 2007 (the “2007 Regulations”).

1.3 In August 2018, Mr XY appealed the refusal by FCC to grant access to the waste destination data to the Commissioner. The Commissioner decided in July 2019 that the public interest in disclosing the waste destination data to Mr XY outweighed the Company’s commercial interests served by refusing access to such information to Mr XY. In September 2019, the Company challenged the decision of the Commissioner in the High Court.

2 THE HIGH COURT DECISION

2.1 The High Court, in upholding the decision of the Commissioner, outlined the following points:

2.1.1 the 2007 Regulations generally favour the disclosure of environmental information and a public body should only refuse to disclose access to environmental information in clearly defined circumstances;

2.1.2 the disclosure of environmental information could facilitate (i) further scrutiny by the public of waste management and (ii) identification of short-comings in the sector;

2.1.3 the motivation behind a member of the public applying for environmental information is not a relevant consideration for a public body in deciding whether to disclose environmental information;

2.1.4 there is no statutory obligation on the Commissioner to disclose the identity of an applicant seeking the release of environmental information from a public body;

2.1.5 an applicant, such as Mr XY, seeking disclosure of environmental information by a public body is not required to state their interest in making an environmental information request; and

2.1.6 public bodies may refuse to make available environmental information where its disclosure would adversely affect commercial or industrial confidentiality but public bodies must consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusing disclosure.

3 KEY TAKE-AWAYS FROM THE M50 SKIP CASE

3.1 It seems clear from the M50 Skip Case that public bodies, when considering an environmental information request, will generally permit the disclosure of the environmental information on public interest grounds.

3.2 It is also clear from the M50 Skip Case that an applicant making an environmental information request is not required to state their interest in making the request nor are the motives of the applicant a relevant consideration for the public body in making its decision to grant access to the requested information. Given the competitive nature of the waste industry in Ireland, the M50 Skip Case will no doubt be considered an unhelpful development by many waste collection operators.

3.3 If a company or business is faced with an environmental information request for information which is commercially or industrially confidential or sensitive in nature, in order to prevent such information from being disclosed, the company or business should:

3.3.1 engage with the relevant public body as soon as possible; and

3.3.2 demonstrate to the relevant public body why the requirement to keep the information confidential outweighs the need to disclose such information to the public by evidencing how the disclosure of the requested information would adversely affect commercial or industrial confidentiality. This could be achieved by, for example, setting out how the disclosure would:

(a) give a competitive advantage to other companies and businesses operating in the industry; and/or

(b) cause financial loss to the company or business.

For further information or advice on environmental information requests or other environmental issues, please contact the Environmental and Planning Group:

Mary Kiely, Senior Associate, Corporate & Commerical - MaryKiely@eversheds-sutherland.ie

Michael Twomey, Associate , Dispute Resolution & Litigation - MichaelTwomey@eversheds-sutherland.ie