The High Court has rejected Bord na Móna plc’s appeal against a decision that environmental information held by its subsidiary, Bord na Móna Biomass Ltd, was also held for the parent company under access to environmental information rules.
In a judgment dated 7 February 2023, Ms Justice Niamh Hyland found that information can be held by a company for its own purposes while also being held on behalf of a public authority. She said the EU rules should be interpreted to promote the widest possible access to environmental information.
The case arose from a 2019 request by Right to Know CLG for details of biomass imports, including origins, quantities, suppliers and sustainability documentation. The request also sought records of meetings about biomass and correspondence with the minister and department responsible for climate action. Bord na Móna refused, saying any relevant information was held by Biomass, which it said was not subject to the rules.
The Commissioner for Environmental Information ruled in September 2021 that information held by Biomass was held for Bord na Móna. He annulled the refusal and expected Bord na Móna to issue a fresh decision on access. The Commissioner did not decide whether any disclosure exceptions applied, and did not determine whether Biomass was itself a public authority.
Bord na Móna appealed on points of law, arguing that Biomass was a separate legal entity and held the information for its own commercial purposes. The judge accepted that the two companies have separate legal identities and said control of a subsidiary alone does not decide whether information is held for its parent.
However, she found that the Commissioner was entitled to consider the statutory and factual relationship between the companies. Under the Turf Development Act 1998, subsidiaries carry out Bord na Móna’s principal activities and must comply with directions from the parent. The judge concluded the parent could direct Biomass to provide information to it. She also found the Commissioner could reasonably rely on material showing shared commercial interests and familiarity with at least some of the requested information.
The court rejected the appeal. It did not order disclosure, decide whether exceptions justified withholding any material, or determine whether Biomass was a public authority. The matter was to be listed for a later hearing on costs and any other orders.