THE COMMISSIONER FOR Environmental Information has ordered the Government to release information about the use of its ministerial jet service by two Irish presidents.
The order was made following an appeal by the transparency group Right to Know, who lodged an information request to the Department of Defence under Access to Information on the Environment (AIE) Regulations in 2016.
The request sought a number of details about the use of the jet service, known as MATS, by Michael D Higgins and Mary McAleese between 1997 and 2016.
It was submitted to the Department using European information laws similar to those set out under Freedom of Information legislation, but which specifically deal with environmental information relating to public bodies.
The Department refused to allow Right to Know to access the information, arguing that the information sought was personal in nature, that the President had not consented to its release, and that its disclosure could present a threat to national security.
The request was also refused on the grounds that the information sought by the group was not environmental, while the Department further claimed that the President was exempt from requests under AIE Regulations.
But in a ruling last week, Commissioner for Environmental Information, Peter Tyndall found that the information requested by Right to Know was related to the environment, and said the Deparment’s refusal to release it was unjustified.
He annulled the Department’s decision, and ordered it to make the information available to the group.
However, in another ruling last week, the Commissioner upheld a decision by the Office of the Secretary General to the President (OSGP) not to disclose records to Right to Know which related to the President, following a separate request under AIE Regulations.
The group had sought details of two speeches given by Michael D Higgins in 2015 and 2016, but the request was refused on the basis that the OSGP was exempt on the grounds that it was not a public authority for the purposes of AIE Regulations.
Right to Know also appealed that decision to the Commissioner for Environmental Information, who found that the OSGP was not obliged to disclose the records.
Not published
The information sought by Right to Know under AIE Regulations related to the use of the Ministerial Air Transport Service (MATS), which is operated by the Department of Defence.
The service is used to provide government officials and the President with an air transport service for official engagements, both domestically and abroad.
Details about the use of MATS, including departure and arrival dates, routes, flying time, the names of those who use it and the number of passengers on board when it is used, is regularly published on the Department’s website.
However, details about the President’s use of the service is not published online, and on 13 September 2016, Right to Know submitted a request under AIE Regulations to obtain access to information about its use by Michael D Higgins and Mary McAleese.
As part of its request, the group specifically asked for:
a spreadsheet of all travel undertaken by the Ministerial Air Transport Service – to include flights by any aircraft (government jet, Learjet, Beechcraft, Air Corps helicopters etc) – relating (only) to travel by the Presidents Mary McAleese and Michael D Higgins in the period 11 November 1997 to the current date. This spreadsheet to include the date of travel, departure point and destination, flying time, and if possible, the number of passengers.
On 20 September, the Department formally refused the request, telling Right to Know that the President was not a public authority whose records could be obtained under AIE Regulations.
The Department cited three exceptions to disclosure under AIE Regulations:
The group appealed the decision the following day, requesting an internal review of the Department’s original finding by a more senior official.
However, the finding was upheld on 7 October, and Right to Know subsequently appealed the decision to the Commissioner for Environmental Information.
Contrary to public interest
As part of his review, the Commissioner examined whether the request covered the definition of environmental information, whether the President was exempt from requests under AIE Regulations, and whether the three exceptions were valid.
He opened by noting the position of the Department of Defence, which had re-affirmed its stance that the information requested by Right to Know was not environmental.
According to Tyndall’s report, the Department contended that the connection between the information and the environment was “so minimal and remote that it falls outside the scope of the definition of environmental information”.
“The Department contends that the definition is confined to information on matters affecting or likely to affect the environment,” the report said.
“It states that aircraft movement cannot be said to have these effects, nor does the use of a particular form of transport constitute an “activity” under… AIE Regulations.”
Meanwhile, the Department also submitted that the President did not fall within the definition of a “public authority” set out in AIE Regulations, citing FOI legislation.
It argued that disclosing the information to Right to Know would be contrary to article 8(a)(ii) of the AIE Regulations, outlining an exception for public interest and security reasons.
It also cited Article 13.8.1° of the Constitution to back up its claim, stating that disclosure would contradict the constitution by legally obliging the President to provide the information.
“[The Department] says that there is no significant public interest in the disclosure of the information,” Tyndall wrote.
“It also says that the information does not reveal anything about the state or the environment or the level of emissions and as such the public interest in disclosure is negligible.”
Pattern of travel
As part of the review process, the Office of Secretary General to the President (OSGP) was invited by the Commissioner to make submissions as a third-party.
Like the Department of Defence, the OSGP argued that the President was not a public authority within the scope of AIE Regulations, and that the request did not fall under the definition of environmental information.
The office also cited Article 13.8.1° of the Constitution, which states that the President is not answerable to either House of the Oireachtas or courts.
“It…submits that, as Article 13.8.1° of the Constitution precludes the President from participating in procedures before the courts, it necessarily follows that records relating to the President are exempt from release regardless of which public authority holds them,” Tyndall’s report said.
Additionally, the OSCP claimed that disclosing the information to Right to Know would be equal to releasing personal information, exempt under article 8(a)(i) of the AIE Regulations, and that the use of MATS by the President was therefore protected by law.
The office further contended that releasing information about the use of MATS would constitute a security risk, as set out under article 9(1)(a) of the AIE Regulations, arguing that disclosure could expose vulnerabilities in the President’s pattern of travel.
Previous rulings
In its submission, Right to Know argued that the information requested was related to the environment, citing a previous ruling by the Commissioner in relation to the use of MATS by the Government.
That request under AIE Regulations sought similar details about the use of the service to those requested by Right to Know, including dates of travel, destination, the number and name of passengers and the minutes and time spent on board on each flight.
Right to Know submitted that the question of whether the President was a public authority who was subject to AIE Regulations was not relevant, as the information was held by the Department of Defence.
It further argued that the Constitution did not confer “absolute secrecy” on all information relating to the President.
“[Right to Know] states that Article 13.8.1° of the Constitution defines the separation of powers between the President, the Courts and the Oireachtas and no more,” the Commissioner noted.
“It also states that Ireland cannot narrow the scope of the AIE Directive either through transportation measures or by the application of the national constitutional constraints.”
Right to Know argued that, if the Department’s argument was upheld, then only environmental information relating to public authorities would be accessible under AIE Regulations, contrary to the Commissioner’s decision in another case.
‘Failed to explain’ exception
The group also submitted that the disclosure of the information would not have any effect on security, as the Department contended by invoking Article 9(1)(a) of the AIE Regulations.
The article states that requests for information under AIE Regulations can be refused if the information sought would “adversely affect… international relations, national defence, or public security”.
However, Right to Know said that the Department had “failed to explain” its reliance on the exception, particularly as some of the information it sought was almost 20 years old and dealt with a former President, not just the incumbent.
The group said that the Department already published similar flight information for other state officials, including the Taoiseach, without any concern for public safety.
“[Right to Know] suggests that if the Taoiseach’s use of the MATS can be safely published, then the President’s use of it can also be published,” Tyndall wrote.
Right to Know said that the exemption was not relevant, as the President would have to play a significant role in public defence or national security in order for it to apply.
Finally, the group also claimed that, as the distance travelled by an aircraft relates to how much carbon dioxide it emits, the information was related to the environment.
It submitted that because air travel is one of the most environmentally harmful modes of transport, the public has a right to know details of its use by the Government and public officials, including the President.
Environmental information
As part of his findings, Tyndall noted that he was satisfied that the use of MATS – as a form of official air travel – was an activity affecting elements of the environment, as it involved the use of combustion engines which emit carbon dioxide into the atmosphere.
He wrote that route information, including departure points and destinations, could be used to indicate the distance travelled, and therefore be used to calculate aircraft emissions.
The Commissioner found that other information sought by Right to Know, including dates of travel, flight duration and the number of passengers on board, were “integral” to the activity of official air travel, and that their disclosure would facilitate accountability and transparency in an activity affecting the environment.
He further noted that he had no reason to depart from the approach he had taken in his previous ruling on the use of MATS by the Government.
Discussing that ruling further, the Commissioner added:
It is noteworthy that the public authority in [this case] was the Department of Defence, and that it did not appeal my finding that the information in that case, which is the same type of information requested in this case, is environmental information.
‘Not satisfied’
The Commissioner accepted Right to Know’s argument that the information requested was held by the Department, rather than the OSGP.
He said that while he also accepted the President’s immunity under Article 13.8.1° of the Constitution, it was important to note that AIE Regulations do not provide for the exclusion of records related to the President, unlike the FOI Act.
“I am not satisfied that the requested information, which is held by the Department, is excluded from the scope of the AIE regulations… ” Tyndall wrote.
The Commissioner said that neither the Department nor the OSGP had explained how the information sought by Right to Know qualified as personal information.
Nor had they shown, he said, how disclosing information relating to the President’s use of MATS would adversely affect the duty of confidentiality towards Higgins and McAleese, or their capacity as private citizens or members of the public.
Hypothetical danger
The Commissioner also considered whether Right to Know’s request adversely affected public security.
While Tyndall did not accept Right to Know’s argument that the President had to play a substantive role in national security in order for the exemption to apply, he was satisfied that the disclosure of the information would not adversely affect international relations or national defence.
He said that while it was not necessary to show that disclosing the information would threaten the President, the potential for harm had to be more than hypothetical.
He dismissed the Department and OSGP’s arguments that the information, if released, could be combined with other data to reveal a pattern of the President’s travel.
“Neither the Department nor the OSGP has explained or illustrated how pooling of information in this manner would adversely affect the security of the President,” Tyndall wrote.
He noted that the Department routinely published similar information regarding the use of MATS by the Taoiseach and other officials, and that other information regarding the President’s public engagements was freely available.
The Commissioner ordered the Department to annul its refusal of Right to Know’s request under AIE Regulations, and directed it to make the information available.
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