The Irish High Court has held that Bord na Móna (BNM) must disclose environmental information held by its subsidiary company. BNM had claimed that its subsidiary was not a public authority and was therefore exempt from certain disclosure of information requirements under the European Communities (Access to Information on the Environment) Regulations 2007 – 2018 (AIE Regulations).
The Court however determined that the subsidiary company held commercial information on behalf of BNM as well as its own commercial information, which brought the information within the scope of the AIE Regulations, as well as EU Directive 2003/4.
In April 2019, an organisation called Right to Know CLG made a request to BNM for certain information relating to biomass imports from January 2017 to present. The information included questions including country of origin, amount in tonnage, names of growers and companies from which BNM purchased biomass. The request also included correspondence with the Minister for Climate Action and certain agendas/minutes of meetings with the Department of Communications, Climate Action and the Environment.
BNM refused access to the information on the basis that the information was held by a subsidiary company called Biomass. It asserted that Biomass was not a public authority and accordingly the provisions of the AIE Regulations did not apply. BNM also claimed that it did not have to provide the information because it was subject to commercial confidentiality.
The matter was referred by Right to Know to the Commissioner for Environmental Information. In a decision from September 2021, it was determined that Biomass was holding environmental information on behalf of a BNM, which was a public authority. As such, it was held that BNM had to provide the information to Right to Know.
BNM appealed the decision to the High Court on a number of grounds.
The High Court held it was clear that BNM exercised “enormous control over the subsidiary”, having regard to the company structure and matters such as the Memorandum of Association, the issuing of share capital to the BNM and the appointment of a chairperson by BNM to Biomass. There was significant integration between BNM and Biomass, the Court held.
The Court then considered who ‘held’ the requested information relating to Biomass. The Court accepted that if BNM had no control over the information, then it could not be considered as held “for” BNM. However, the Court also held that BNM had a legally enforceable right to obtain the information from Biomass, where Biomass had to comply with directions from BNM under section 37(5) of the Turf Act 1998. The Court therefore held that this extended to providing the information if it was requested by BNM.
The Court decided the Commissioner did not err in his conclusions that the information was held by Biomass for BNM. Given the commercial context of BNM and Biomass, the information was being held on behalf of BNM.
The decision of the Commissioner was upheld and BNM was required to disclose the information to Right to Know.