Dublin waste firm loses challenge over information disclosure decision

A Dublin-based waste collection company has lost its High Court challenge to the Commissioner for Environmental Information’s decision permitting a man to access certain waste destination data.

The Commissioner had ruled, while the data (WDD) was industrially confidential within the meaning of 2007 regulations on access to environmental information, the public interest was served by permitting rather than refusing its disclosure.

In a 99 page judgment on Wednesday, Mr Justice Mark Heslin rejected the challenge by M50 Skip Hire & Recycling Ltd, based in Santry, to that July 2019 decision.

The company’s case was against the Commissioner with Fingal County Council and the man who sought the information, referred to as Mr XY, as notice parties.

The judge noted, under its waste collection permit, M50 Skip Hire had to provide an annual environmental report (AER) to the council.

In June 2018, Mr XY requested the firm’s 2017 AER from the council and got the report with material redacted, including the WDD. The Council said the WDD, the facilities to which waste was sent by M50 Skip Hire, was commercially confidential within the meaning of Article 9.1.c of the 2007 regulations.

After the man won an appeal to the Commissioner over that refusal, the firm challenged the Commissioner’s decision in the High Court.

Mr Justice Heslin said the fundamental basis for the firm’s objection was its view that the Commissioner, having carried out the public interest balancing test set out under Article 10.3 of the regulations, should have arrived at a “different” outcome and had struck the “wrong” balance.

That was not a basis for the court to overturn the decision which the evidence showed was lawfully made, he said.

Arguments that the Commissioner failed to consider the commercial confidentiality of the data and the potential damage to the company’s business when carrying out the balancing test were undermined by the evidence, he held.

No specifics were given by the firm as to how disclosure would prejudice its competitive position, he said.

The Commissioner had made clear the exemption from disclosure provided for in Article 9.1.c was subject to weighing up the public interest in disclosing the WDD, he said.

It was “entirely permissible” for the Commissioner to find the WDD was commercially sensitive to the firm, and commercially confidential within the meaning of Article 9.1.c, yet go on to direct its release, having applied the balancing test in Article 10.3.

Earlier in his judgment, the judge noted Brian Redmond, a director of M50 Skip Hire, had said in an affidavit that Conor Walsh, secretary of the Irish Waste Management Association and employee of SLR Environmental Consulting Ltd, had informed Mr Redmond that it was he, Mr Walsh, who had requested the information from the Council.

The judge was satisfied that the identity of Mr XY and his motivation for seeking environmental information were not relevant issues in the case.

The revelation subsequent to the Commissioner’s decision Mr XY was employed by a company in the waste industry changes nothing because M50 Skip Hire had, before the Commissioner’s decision, made its submissions with a “clear and explicit” focus on competitors.

There was no evidence Mr Walsh withheld his identity from the Council or Commissioner when seeking the information and the fact he was secretary of the Association and an employee of SLR did not disentitle him from seeking it.

The judge also noted the Commissioner had drawn M50 Skip Hire’s attention to a separate January 2019 decision by the Commissioner requiring Offaly County Council to make WDD available concerning seven other waste collection permits.

In that decision, the Commissioner said it would be appropriate to apply an additional weighting to the disclosure of environmental information on waste management because such disclosure would facilitate public scrutiny.

The Commissioner had emphasised he would be conducting a de novo review in M50 Skip Hire’s case and would not be bound by the earlier decision, the judge said.