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No Access: Bord na Móna companies blanket blocking release of information

Key subsidiaries say they fall outside of regulations that enable environmental information requests.

Bord Na Mona Edenderry Power Station in County Offaly
Bord Na Mona Edenderry Power Station in County Offaly
Image: Eamonn Farrell/Photocall Ireland

COMPANIES OWNED BY Bord na Móna say they fall outside of the scope of key regulations enabling access to environmental information, limiting transparency on the semi-state’s core operational activity, Noteworthy can reveal. 

Bord na Móna is a multi-million euro commercial semi-state company and one of the largest landholders in the country, including around 80,000 hectares of peatlands. It has 30 subsidiaries, 29 of which are 100% owned by Bord na Móna.

These subsidiaries encompass the key operational activities of the commercial semi-state’s operations, including its peat and solid fuel operations, waste and recycling operations, wind farm projects and other core energy generation including biomass burning at Edenderry in Offaly.

Bord na Móna is exempt from the Freedom of Information (FOI) Act, however, it still falls under the Access to Information on the Environment (AIE) Regulations that entitle citizens to ask public bodies for documents on biodiversity, pollution and climate issues.

The use of AIE has played a key role in Noteworthy investigations and has proven pivotal in the work of other media organisations in Ireland.

For example, it was through AIE that an Irish Times investigation in 2017 revealed sustainability concerns of Bord na Móna’s biomass imports linked to the palm oil industry. Following this investigation, Bord na Móna ceased all importation of the product. 

Change of tune

However, following a near identical AIE request for biomass import data in April 2019, Bord na Móna determined that the information requested was held by Bord na Móna Biomass Limited. It stated that its subsidiary was not a public authority and so was not subject to the AIE Regulations.

The transparency campaign group Right to Know brought an appeal before the Office of the Commissioner for Environmental Information (OCEI) who decided in September 2021 that “the information within the scope of the request which is held by Bord na Móna Biomass is held for Bord na Móna plc”.

While the subsidiary has a separate legal personality and operates independently in its commercial operations, the OCEI found that “there is a very close connection between the two companies, closer than the usual relationship between a parent company and a wholly owned subsidiary” and it “presents no separate face to the public”. 

This decision meant that AIE information requests could be made to its biomass subsidy. However, Bord na Móna is challenging this decision in the High Court, with the case listed for hearing in December. 

  • Read our guide to getting environmental information from public authorities

Noteworthy has since made several other AIE requests in relation to peat extraction, horticultural peat exports and plans to build wind farms on peatlands. In each case, Bord na Móna determined that the records were held by subsidiaries which it stated did not fall under the definition of a public body and were exempt from the AIE Regulations.

We sought an internal review in each instance, with Bord na Móna coming to the same conclusion each time. Following these refusals, we sent a request to Bord na Móna for the stance of all subsidiaries in which it has 100% share ownership. 

Bord na Móna Plc did not provide an answer for each subsidiary but said this question has been considered by Bord na Móna Energy; Bord na Móna Horticulture; Bord na Móna Fuels, Bord na Móna Biomass and Bord na Móna Powergen.

In each case, it said, the subsidiaries have “determined that they are not public authorities within the meaning of the AIE Regulations”. It did not outline how the subsidiaries had come to this conclusion.

Noteworthy currently has two live appeals before the OCEI in relation to decisions taken by Bord na Móna in which it found the records were held by subsidiaries and not the main company itself. 

This article, our information requests and subsequent appeals were supported by reader contributions to Noteworthy, The Journal’s community-led investigative platform. If you would like to help fund our ongoing work, please consider contributing here>>

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