Decision
Mr X and daa Public Limited Company
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93474-R9M5N9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93474-R9M5N9
Published on
Whether daa is entitled to rely on article 9(2)(c) of the AIE Regulations to refuse disclosure of a draft EIS requested by the appellant
1. On 8 May 2019, the appellant submitted a request to daa in which he sought “the latest EIS studies, whether draft or complete, undertaken by the DAA in relation to the new North Runway and/or any planned changes to permitted operations of all runways at Dublin Airport”.
2. In response, daa provided the appellant with the EIS which had been submitted to Fingal County Council in 2004 (along with an addendum submitted in 2005) (the 2004/2005 EIS). The 2004/2005 EIS had been submitted to Fingal County Council in connection with daa’s original planning application for its North Runway development, permission for which had been granted in 2007 subject to certain conditions. In its response to the appellant, daa also noted that “as permitted in Article 9(2)(c) of the AIE Regulations, which specifies that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data, draft material is not being provided in response to this request”.
3. The appellant, by email dated 28 May 2019, asked daa to “confirm whether the DAA prepared an EIS as part of their consultation on Flight Paths and change to Permitted Operations back in 2016/2017”. In its response, daa informed the appellant that no further EIS/EIAR had been completed, other than the 2004/2005 EIS which it considered had been disclosed to the appellant. The appellant then sought clarity as to the stage of completion of “the EIS that the daa undertook in 2016/2017”. On 7 June 2019, daa confirmed that the EIS it had undertaken in 2016/2017 was still in draft format (referred to in this decision as the draft EIS).
4. On 10 June 2019, the appellant emailed daa to note that he wished to seek an internal review of daa’s decision to invoke article 9(2)(c) of the AIE Regulations in respect of the draft EIS. The outcome of the internal review was communicated to the appellant on 29 July 2019. It noted that “the appeal process has affirmed the original decision to withhold the draft EIS information on the basis that this information comprises material in the course of completion or unfinished documents or data”.
5. The appellant appealed to my Office on 29 August 2019.
6. Neither daa’s original decision, nor its internal review, referred to a weighing of the public interest served by disclosure against the interest served by refusal (as required by article 10(4) of the AIE Regulations). Nor did those decisions deal with the issue of whether partial disclosure was possible in line with article 10(5) of the AIE Regulations. In addition, daa did not inform the appellant of the name of the authority preparing the material and the estimated time needed for its completion, as provided for in article 10(6) of the AIE Regulations. However, daa did provide submissions to this Office in which it acknowledged its failure to comply with article 10(6) and noted that it would take steps to ensure that such non-compliance is not repeated. Those submissions also addressed the public interest point. I would remind daa that articles 7(4) and 11(4) of the AIE Regulations require it to provide reasons for refusal both at decision and internal review stage. In this regard, the judgment of the High Court in Right to Know v. An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”. As such, I would encourage daa to also take steps to ensure that further detail is provided to applicants in respect of future refusals of requests for environmental information under the AIE Regulations.
7. In his appeal to this Office, the appellant asserted that daa had been working on a more recent EIS since at least 2016 as part of a proposed planning application to remove operating restrictions on its runways. In support of this contention he provided a document entitled “daa Consultation on Flight Paths and Change to Permitted Operations – Information Booklet – October 2016”. This document referred to an ongoing EIS process and to research which was being undertaken as part of that process, including noise and air quality monitoring as well as studies to assess the impact of vibration and odours. The appellant was of the view that “99% of this document must have been completed by 2016”. The appellant submitted that the work that had been completed should be made available in the public interest, which he identified as an interest in maintaining the health and well-being of local residents.
8. A schedule of relevant documents along with copies of those documents, was provided by the daa to my Office in October 2019. This included a copy of the draft EIS along with a copy of the 2004/2005 EIS and its associated appendices etc. The draft EIS consisted of three draft chapters with no accompanying appendices or additional documents. daa’s submissions to my Office defined the Exempted Information in this case as “the incomplete environmental information that may be contained in EIS studies eg, in the Environmental Impact Assessment Report (EIAR) / EIAR scoping report that is in the course of completion”. However, daa subsequently confirmed that the EIAR scoping report, which was prepared in 2016, was publicly available such that, at the time of the appellant’s request on 8 May 2019, the only document withheld was the draft EIS. My investigator confirmed with daa in February 2021 that it did not hold any other documents which could be considered within the scope of the appellant’s request.
9. In response to the appellant’s assertion that the draft EIS should have been substantially completed by the time of his request, daa also submitted to my Office that while drafting of the EIS had been carried out in 2016/2017, it was halted pending the implementation of EU Regulation 598/2014 on the establishment of rules and procedures with regard to the introduction of noise related operating restrictions at European Union Airports within the Balanced Approach (Regulation 598/2014). Regulation 598/2014 provides for the appointment of a Competent Authority responsible for adopting and assessing noise-related operating restrictions at prescribed airports within the European Union, of which Dublin Airport is one.
10. daa submitted that as the relevant implementing legislation, the Aircraft Noise (Dublin Airport) Regulation Act 2019, was not enacted until May 2019 (appointing Fingal County Council as the Competent Authority), it was not in a position to progress the draft EIS in the intervening period. It further noted that consultants had been appointed in June 2019, following the enactment of the 2019 Act, to commence work to meet the requirements set out in that Act and to produce an Environmental Impact Assessment Report. It again asserted its entitlement to rely on the exception contained in article 9(2)(c) noting that it was anticipated that the application to Fingal County Council would be made by the end of 2019 and that all details of the EIAR would be available to the public at that stage.
11. Further submissions were requested from and provided by daa in May 2020, which set out the facts it considered to justify the application of the exception in article 9(2)(c) and addressed the public interest balancing exercise required under article 10(3) of the AIE Regulations. In summary, daa’s position was as follows:
(i) The draft EIS was exempt from release under article 9(2)(c) of the AIE Regulations because it was unfinished, being worked on by daa and had not yet been completed.
(ii) Its position was consistent with the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance) which provides at 12.6 that: “public authorities are not obliged to make available material that is incomplete or in preliminary or other draft form; this might apply, in particular, to reports or studies”. In this regard, daa also stated that it was consistent with my previous decisions to the effect that the exception is relevant to documents which are being actively worked on. daa noted that, as per the Aarhus Guide:
“the expression ‘in the course of completion’ relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared” and the wording “in the course of completion” suggests that “the document will have more work done on it within some reasonable timeframe”.
(iii) At the time of drafting the document at issue, daa was awaiting enactment of the legislation implementing Regulation 598/2014 and the designation of a Competent Authority for the purposes of aircraft noise regulation such that the suspension of work on the draft EIS was necessary, legitimate and reasonable. daa had immediately appointed consultants to re-commence work on the draft EIS following the enactment of the Aircraft Noise (Dublin Airport) Regulation Act 2019 and the draft EIS was currently being worked on as part of a proposed planning application to Fingal County Council to include information relating to the requirements of the Aircraft Noise (Dublin Airport) Regulation Act 2019, changes to the Dublin Airport description, projected changes to air traffic movements, and updated modelling and assessment (which the daa submitted was still ongoing). The planning application was expected to be made to Fingal County Council before the end of 2020 (subject to any delays which might be caused by Covid-19 restrictions) as part of which the completed EIAR would be made publicly available.
(iv) The public interest in allowing reliance on the exception outweighed any public interest in disclosing the information contained in the draft EIS in circumstances where:
a. No change to the operating conditions at Dublin Airport could be commenced until a planning process was completed. That planning process would fully vindicate all Aarhus Convention rights including access to the relevant environmental information through publication of the application documents (including the completed EIAR), advertisement of the application and public participation in the planning process.
b. Data, including baseline data for air quality and noise routinely gathered by daa, is already made available to the public by daa on the Dublin Aiport website. Any public interest which may exist in the release of that data is therefore already satisfied.
c. The early provision of the draft EIS (which is incomplete) could serve to undermine the established public consultation process provided for under the planning system.
(v) The draft EIS did not contain information on emissions and was therefore not subject to release in accordance with article 10(1) of the AIE Regulations. The material in the course of preparation would model and assess potential future emissions for the purposes of the requested change to operating conditions which was the subject of daa’s planning application. daa also noted that information on ongoing monitoring of emissions to the environment from current activities at Dublin Airport is available from the Dublin Airport website.
12. My Office’s Investigator then wrote to the appellant to summarise the position of daa, as outlined in its submissions, and to provide him with an opportunity to submit any comments on that position or in relation to the appeal in general. The appellant provided further submissions to my Office on 10 August 2020 in which he relied on a variety of documents, including minutes of meetings of the North Runway Community Liaison Group and the Dublin Airport Environmental Working Group, in support of his argument that the EIS was effectively concluded back in 2017. He argued that, although it had been tweaked since then, the “further work” being carried out by daa was immaterial to the EIS in general. He submitted that the public had an entitlement to access the material contained in the current version of the EIS. He argued that the scope of his appeal extended “to all EIS material that has gone into any iteration of the current planned EIS that has been in the making since 2016 and which formed the backbone of the consultation on flight paths and permitted operations process in 2016/2017 in preparation for the application to An Bord Pleanála to remove the planning restrictions”. He continued that “all iterations of this EIS have shaped and formed this document and should be part of the scope of this appeal”. Finally, he noted that if daa’s arguments were accepted, the public would need to wait until the planning application was made to access the relevant information and that “the daa are not in a position soon to apply for planning permission to increase capacity at Dublin Airport and therefore there is no immediate requirement to remove operating restrictions, due to fall in demand for air travel” and the public should not have to wait for the submission of a planning application to gain access to information which might affect their health.
13. As communicated to both the appellant and the public authority, my review in this case is concerned with the question of whether daa was justified in refusing access to the draft EIS on the basis of article 9(2)(c) of the AIE Regulations.
14. Although the appellant has submitted that the scope of his appeal extended “to all EIS material that has gone into any iteration of the current planned EIS that has been in the making since 2016 and which formed the backbone of the consultation on flight paths and permitted operations process in 2016/2017 in preparation for the application to An Bord Pleanála to remove the planning restrictions” and that “all iterations of this EIS have shaped and formed this document and should be part of the scope of this appeal”, I am satisfied that his original request was for “the latest EIS studies” (emphasis added).
15. daa identified the draft EIS as the pertinent record in relation to the appellant’s request. Access to this record was refused by daa under article 9(2)(c) of the Regulations on the basis that it concerned “material in the course of completion, or unfinished documents or data". This appeal is therefore concerned only with the appellant’s right to access the draft EIS, a copy of which was provided to my Office in Word version, containing tracked changes and comments, on 2 October 2019.
16. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and daa. I have also examined the contents of the records at issue. In addition, I have had regard to:
17. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
18. As noted above, the appellant appealed to my Office on 29 August 2019 in respect of daa’s refusal to provide him with the draft EIS and its reliance on article 9(2)(c) as the basis for such refusal. Unfortunately, there were some delays in the investigation of the appeal, due both to some delays on daa’s part in providing submissions to my Office as it sought to deal with the unprecedented challenges caused by the Covid-19 pandemic and to resourcing issues within my Office. As such, before a decision was reached in this matter, a completed Environmental Impact Assessment (the completed EIAR) was published on the websites of both daa and Fingal County Council. This was carried out in connection with a planning application, submitted by daa on 18 December 2020, seeking to amend certain conditions of the original planning permission granted in respect of the North Runway in 2007.
19. As such, before I consider whether daa is entitled to rely on the exception contained in article 9(2)(c) of the AIE Regulations, I must consider whether the information, the subject of the appellant’s request, has now been made publicly available.
20. My Office’s Investigator wrote to the appellant on 3 February 2021 to seek his views as to whether it was necessary to continue with the appeal in circumstances where the completed EIAR had been published. The appellant responded by letter dated 7 February 2021. He submitted that the completed EIAR did not contain all of the information which he believed was contained in the draft EIS which he had requested in May 2019. In particular, he noted that the completed EIAR referred only to noise projections up to 2025, whereas the EIS Scoping Report prepared by RPS Consultants in June 2016 indicated that daa were intending to include noise data projections up to 2037. He also asserted that such indications had also been provided at pre-planning consultation meetings in October 2019 and February 2020, where draft EIS Scoping Reports were provided and presentations were made, both of which referenced noise projections up to 2040. The appellant concluded that “the Covid-19 pandemic has provided an opportunity for the daa to change their planning application to reflect the lower passenger numbers and to apply to Fingal County Council for an application to amend the 2 planning conditions using data only up to 2025 which does not give a true reflection of the projected noise levels into the future” and that “the draft EIARs pre Covid containing projection years beyond 2025 are of exceptional public interest as they show what the noise situation is to be predicted in those years”.
21. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the record(s) and the extent to which I can describe certain matters in my analysis is limited. Having reviewed the draft EIS and the completed EIAR, I note that the intention outlined in the draft EIS was to provide for specialist assessments and projections on the basis of a base year of 2022 with 2037 chosen as the design year to predict potential future impact from the change of operations. My understanding is that the purpose of the design year is to predict potential impacts of the changes to the operating conditions sought in the planning application and, as such, it is chosen on the basis that it is considered a reasonable point in time at which the system would be expected to be operating at a sufficient level to assess predicted growth in air traffic movements. The completed EIAR also uses 2022 as a base year but uses 2025 as the year for future assessment on the basis that 2025 is predicted to be the year of highest use of the runway system and associated emissions i.e. the year when the limit of 32 million passengers per annum set down in previous planning permissions relating to the Airport will be reached but not exceeded.
22. As such, I am satisfied that, prima facie, there appears to be information within the scope of the appellant’s original request that is not contained in the completed EIAR such that I must proceed to consider whether the exception in article 9(2)(c) can be relied on by daa in order to withhold that information. However, for the avoidance of doubt, this should not be taken as an endorsement or agreement with the appellant’s submissions of 7 February 2021.
23. Article 9(2)(c) of the AIE Regulations provides as follows:
“A public authority may refuse to make environmental information available where the request … concerns material in the course of completion, or unfinished documents or data”.
24. Article 10 however provides for certain limitations on the ability of a public authority to refuse to make environmental information as follows:
“(3) The public authority shall consider each request on an individual basis and weigh the public interest served by the disclosure against the interest served by the refusal.
(4) The grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
(5) Nothing in article … 9 shall authorise a public authority not to make available environmental information which, although held with information to which article … 9 relates, may be separated from such information.”
25. As such, there are three principal issues I must address in my decision:
(i) Whether or not the draft EIS constitutes “material in the course of completion, or unfinished documents or data” within the meaning of article 9(1)(c) of the AIE Regulations, having regard to the restrictive test mandated by article 10(4);
(ii) If so, does the interest served by refusal of the requested information outweigh the public interest in its disclosure?
(iii) If so, is there any material contained in the draft EIS that can be separated from the information subject to the article 9(2)(c) exception, in respect of which partial disclosure could be made?
26. Article 9(2)(c) of the Regulations applies to “material in the course of completion” or to “unfinished documents or data”. The AIE Regulations transpose the AIE Directive into Irish national law. The AIE Directive, in turn, aims to ensure that EU law is consistent with the provisions of the Aarhus Convention, as noted in Recital 5 of the Directive. The Aarhus Guide sets out that “… the mere status of something as a draft alone does not automatically bring it under the exception. The words ‘in the course of completion suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the course of completion they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. ‘In the course of completion’ suggests that the document will have more work done on it within some reasonable timeframe.”
27. I note that the exceptions provided for in Article 4(1)(d) of the AIE Directive and article 9(2)(c) of the Regulations are wider than that contained in the Aarhus Convention. Both the Directive and the Regulations refer to “material in the course of completion or unfinished documents or data” whereas Article 4(3)(c) of the Convention refers only to “material in the course of completion”. As such, while the Aarhus Guide provides a useful starting point for my analysis, I must be mindful of the distinction between the Convention, the Directive and the Regulations. I am also conscious of the decisions of the Court of Justice of the European Union to the effect that while the Guide can be used an aid to interpretation, it is not binding (Solvay and Others v Région Wallonne, Case C-182/10, paragraph 27).
28. The draft EIS consists of the first three chapters of a report (which are themselves unfinished). The purpose of the report is to provide details on the environmental impacts of proposed changes to planning conditions relating to operations at Dublin Airport. daa received planning permission to construct and operate an additional runway at Dublin Airport (the North Runway) in 2007. The 2007 permission was subject to a number of operating conditions. However, as the North Runway is not yet operational, the operating conditions attached to the planning permission have yet to come into effect. Two of the operating conditions (conditions 3(b) and 5) impose limitations on night-time operations at the Airport, firstly by preventing use of the North Runway from 11pm to 7 am, in all but exceptional circumstances, and secondly by limiting the average number of night-time aircraft movements to 65 per night. daa is seeking to have conditions 3(b) and 5 amended before the North Runway becomes operational, such that use of the North Runway would only be prohibited between midnight and 5:59 am and the restriction on night-time aircraft movements would be replaced by a noise quota. Although daa’s position is that an Environmental Impact Statement or Environmental Impact Assessment Report is not legally required in respect of the planning application, it nonetheless decided to prepare one and work began on a draft EIS to accompany the application in or around 2016.
29. daa is also subject to Regulation 598/2014 on the establishment of rules and procedures with regard to the introduction of noise related operating restrictions at European Union Airports within the Balanced Approach. Regulation 598/2014 provides for the appointment of a Competent Authority by each Member State, with responsibility for the adoption and assessment of noise-related operating restrictions at prescribed airports within the European Union, of which Dublin Airport is one. Having commenced the draft EIS in or around 2016 in anticipation of submitting it to the Competent Authority once finalised, daa submitted that it was necessary to suspend work on the draft EIS pending the enactment of national legislation implementing Regulation 598/2014 and providing for the designation of a Competent Authority. This did not occur until 22 May 2019 when the Aircraft Noise (Dublin Airport) Regulation Act 2019 was enacted. Sections 1 to 8 of the 2019 Act were commenced in June 2019 while the remaining sections were commenced in September 2019. In its submissions to this Office, daa noted that it engaged consultants to recommence work on the draft EIS in June 2019, following the enactment of the 2019 Act. As such, at the time of the appellant’s request on 8 May 2019, the draft EIS was incomplete and work on it had been suspended pending the enactment of the 2019 Act.
30. I am satisfied that the draft EIS Report was in the course of completion at the time of the appellant’s request. Although it could strictly speaking be argued that the document was not being actively worked on at the time of the appellant’s request, it was anticipated that the draft EIS would have further work done on it with a view to its completion as soon as the legislation implementing Regulation 598/2014 had been enacted and a Competent Authority appointed. As the Aircraft Noise (Dublin Airport) Regulation Act 2019 dealt with noise-related operating restrictions, which were the subject of daa’s planning application, I am satisfied that it was reasonable to suspend ongoing work on the draft EIS pending the enactment of that legislation and that it can be said that there was an intention to resume work on the draft EIS with a view to its completion once that legislation was enacted. Indeed, this is ultimately what transpired and the completed EIAR was published in December 2020, having been further delayed as a result of the Covid-19 pandemic.
31. Even if the draft EIS could not be said to be in the course of completion on the basis that daa were not actively working on it, I am satisfied that it is an unfinished document as the daa intended to re-commence work on the document with a view to its completion once the legislation implementing Regulation 598/2014 was enacted. I also note in this regard, the Minister’s Guidance which notes that “public authorities are not obliged to make available material that is incomplete or in preliminary [or] other draft form; this might apply, in particular, to reports or studies”.
32. I am of the view therefore that the report is an incomplete or unfinished document within the meaning set out at article 9(2)(c) of the AIE Regulations.
33. My conclusion at paragraph 32 above is not the end of the matter however, as article 10(3) of the AIE Regulations provides that the public interest served by disclosure of the information at issue in this case must be weighed against the interest served by its refusal. Article 10(3) of the Regulations and Article 4 of the Directive make it clear that the public interest must be considered on the basis of the individual circumstances of each case. Further, it is important to note that a review by my Office is considered de novo and therefore it is based on the circumstances of the case at the time that I carry out my review. This approach has been endorsed by the courts.
34. In considering the public interest served by disclosure, I am mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” As such, the AIE regime recognises a very strong public interest in openness and transparency in relation to environmental decision-making. There is undoubtedly a strong public interest in transparency as to how public authorities, such as daa, carry out their functions with regard to environmental factors. That being said, the AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. One such case is in respect of unfinished documents or material in the course of completion. The general public interest in such an exception is evident from the Commission’s Explanatory Memorandum on the AIE Directive which notes that “it should also be acknowledged that public authorities should have the necessary space to think in private. To this end, public authorities will be entitled to refuse access if the request concerns material in the course of completion or internal communications. In each such case, the public interest served by the disclosure of such information should be taken into account”. This was reiterated by the Court of Justice in Land Baden-Württenberg v. DR (Case C-619/19, paragraph 44).
35. Having regard to the particular information at issue in this case, as article 10(3) of the Regulations requires, and mindful that I cannot reveal the substantive content of withheld documents, I note that the draft EIS primarily consists of introductory chapters which set out the background to daa’s request for the amendment of the relevant operating conditions. The majority of this information is general in nature and consists largely of explanations on the part of daa as to why it considers that amendments to the operating conditions are necessary as opposed to the more detailed projections envisaged by the Scoping Reports to which the appellant has referred. I am therefore not persuaded by the appellant’s assertion that the public interest in maintaining the health and well-being of local residents necessitates the disclosure of the draft EIS. From the submissions received by my Office, I can see that daa carried out public consultation exercises with various community groups and it continues to publish updated data in relation to air quality and noise on its website. I accept that much of the public interest in the disclosure of the information contained in the draft EIS has already been satisfied by those mechanisms. That said, I also acknowledge that publication of the draft EIS would provide insight into daa’s position as it was in May 2019, the disclosure of which would contribute to the public understanding of daa’s environmental decision-making processes and functions. There is a strong public interest in such insight.
36. On the other hand, at the time of the request, the draft EIS was unfinished and contained drafting notes from consultants commissioned by daa to provide expertise and guidance with a view to its completion. The purpose of an EIS/EIAR is to identify and predict the likely environmental impacts of a proposed development, to interpret and communicate information about likely impacts and to describe the means and extent by which those impacts could be reduced or ameliorated. There is thus a public interest in having an EIAR completed to a high standard, which in many cases will necessitate detailed discussions and communications with a variety of stakeholders, in particular expert advisors and consultants. There is therefore a strong interest in allowing a public authority the necessary space to think in private with regard to the completion of an EIAR, which, once completed, will be made publicly available and subject to a public consultation procedure.
37. I am also mindful of daa’s position that, in this case, the preparation of an Environmental Impact Assessment in respect of its application was not in fact legally required and was carried out on a voluntary basis. I consider that requiring daa to publicly disclose all aspects of the draft EIS may discourage the preparation of such reports in future where a question arises as to its legal obligation to do so. I acknowledge that it may be less inclined to voluntarily prepare an EIAR where it considers that exchanges with advisors in respect of the preparation of the document would be disclosed. This would be contrary to the public interest and to the general purpose of the AIE Regulations and Directive to ensure increased public access to environmental information and the dissemination of environmental information by public authorities to the widest extent possible, as outlined in Recitals 1 and 9 of the Directive.
38. I must also consider the potential chilling effect of disclosure, and the need to protect the private thinking space of public authorities as provided for in article 9(2)(c), with regard to the specific content of the draft EIS. As set out above, the draft EIS provided to my Office is a Microsoft Word document which has been prepared with tracked changes and comments. It consists of the following elements:
(i) The main body of text which has either been left unaltered or subject to additions made in tracked changes (the Undeleted Text);
(ii) Portions of the main body of text which have been deleted but which are still visible (in strikethrough form) as a result of the use of the track changes function in Microsoft Word (the Deleted Text); and
(iii) Comments from daa and its advisors on various aspects of those drafts, which are contained in comment boxes in the Word document (the Comments).
I must therefore apply the considerations I have identified above to each of those elements separately.
39. As noted above, much of the information contained in the Undeleted Text is introductory and general in nature. I am of the view that there is a public interest in disclosure of this information, as it provides an insight into the environmental decision making process at daa, as set out above. While it is unfinished, it is clear to me from the publication of the final EIAR that daa will not revisit this document for further deliberation. I consider that disclosure of the Undeleted Text, having regard to the general content of that text, would not undermine the maintenance of the “private thinking space” which the exemption in article 9(2)(c) is designed to protect. As such, subject to paragraphs 40 and 41 below, the public interest in disclosure of the Undeleted Text (in particular the general interest in transparency and access to environmental information as well as the provision of insight as to daa’s position in May 2019) outweighs the interest in withholding the Undeleted Text.
40. There is, however, one portion of the Undeleted Text, the inclusion of which is specifically stated to be subject to further sign off in the Comment accompanying it. This portion of text appears in italics on page number 19, between the first paragraph, which ends with the phrase “global markets” and the fifth paragraph, which commences with “it is important that”. It is clear that the inclusion of this portion of the Undeleted Text is subject to further deliberation and was included in the draft as part of a discussion between the parties preparing the draft. I will refer to this portion of text as the Identified Undeleted Text. I am satisfied that there is a strong interest in withholding the Identified Undeleted Text. However, I must consider whether the interest in withholding it outweighs the public interest in the disclosure of information contained in that text. As the information contained in that text is summarised in a more general form in the completed EIAR, I am satisfied that the public interest which would be served by disclosure does not, in this instance, outweigh the interest served by withholding the Identified Undeleted Text on the basis of article 9(2)(c).
41. As such, my conclusion is as follows with respect to the Undeleted Text:
(i) the Identified Undeleted Text may be withheld in accordance with article 9(2)(c) as the interest in withholding that text outweighs the public interest in its disclosure, as outlined in further detail above;
(ii) the remainder of the Undeleted Text should be disclosed as the interest in its disclosure outweighs the interest in withholding that text.
42. It could be argued, at first instance, that the need to protect the private thinking space does arise in respect of the Deleted Text, as it is text which daa, in conjunction with its advisors, indicated an intention to remove as a result of its deliberations on the draft EIS. However, following closer analysis of the Deleted Text, I am of the view that much of the Deleted Text is also of an introductory or general nature such that the protection of the private thinking space which article 9(2)(c) is designed to protect would not be undermined by its disclosure. As with the Undeleted Text therefore, I consider, subject to paragraphs 43 and 44 below, that the public interest in disclosure of the Deleted Text (in particular the general interest in transparency and access to environmental information as well as the provision of insight as to daa’s position in May 2019) outweighs the interest in withholding that text.
43. There is however, one portion of the Deleted Text which contains information of a more detailed and sensitive nature. This portion of text has been deleted specifically on the basis of its sensitive nature according to the Comments which accompany it. This text appears at the page number 25 of the draft EIS between “Figure 2.xx: Traffic Loss by Market with Restrictions on Permitted Operations Remaining” and section “2.7.4.3 Adverse Economic Impacts”. I will refer to this portion of text as the Identified Deleted Text. I am satisfied that there is a strong interest in withholding the Identified Deleted Text. However, that is not the end of the matter and I must consider whether the interest in withholding the Identified Deleted Text would outweigh the public interest in the disclosure of information contained in that text. As with the Identified Undeleted Text, the information contained in the Identified Deleted Text is summarised in a more general form in the completed EIAR. I am therefore satisfied that the public interest which would be served by the disclosure of the Identified Deleted Text does not, in this instance, outweigh the interest served by withholding that text on the basis of article 9(2)(c).
44. As such, my conclusion is as follows with respect to the Deleted Text:
(iii) the Identified Deleted Text may be withheld in accordance with article 9(2)(c) as the interest in withholding that text outweighs the public interest in its disclosure, as outlined in further detail above;
(iv) the remainder of the Deleted Text should be disclosed as the interest in its disclosure outweighs the interest in withholding that text.
45. The deliberative space which there is an interest in maintaining, arises most clearly in respect of the Comments, as those Comments include discussions between daa and its advisors with regard to the progression of the draft. There is a public interest in ensuring transparency and access to environmental information and a public interest in providing access to information which would contribute to a greater understanding of daa’s environmental decision making processes and functions. However, this interest is satisfied to a large extent through the disclosure of the other portions of the draft EIS along with the publication of the completed EIAR. In addition, as I have already outlined, there is also a recognised interest in allowing public authorities a safe space in which to deliberate and this is explicitly recognised by the inclusion of the exception contained in article 9(2)(c) of the Regulations and article 4(1)(d) of the Directive. In this case, I am satisfied that requiring daa to make the Comments publicly available may impact the manner in which Environmental Impact Assessments are conducted in the future and impede the provision of robust feedback and the conducting of detailed deliberations with regard to the preparation of those assessments. It may also discourage a public authority from electing to prepare such assessment where there is a question as to its legal obligation to do so. I am also of the view that the Comments are not necessary in order to understand or make sense of the draft EIS, particularly in circumstances where the completed EIAR has now been published and changes which have occurred between the draft EIS and the completed EIAR will for the most part be evident through a comparison of those reports. However, should daa wish to provide clarity with respect to any portion of the draft EIS in the absence of the Comments, it is of course free to accompany its disclosure of the draft EIS with explanatory information to help recipients of the information to understand its limitations and thereby avoid being misled.
46. As such, I consider that in the particular circumstances of this case, the interest served by the refusal of the request on the basis of article 9(2)(c), outweighs the public interest in the disclosure of that information, in respect of the Comments, the Identified Undeleted Text and the Identified Deleted Text in the draft EIS but not in respect of the remaining portions of the draft EIS.
47. As outlined above, I consider that the interest served by refusal only outweighs the public interest served by disclosure in respect of the Comments, the Identified Undeleted Text and the Identified Deleted Text contained in the draft EIS. As such, the grounds for refusal contained in article 9(2)(c) only apply, in my view, in respect of the Comments, the Identified Undeleted Text and the Identified Deleted Text. Therefore, in accordance with article 10(5), I consider that the remaining portions of the draft EIS should be separated from the Comments, the Identified Undeleted Text and the Identified Deleted Text and that partial disclosure of the remaining portions of the draft EIS should be made.
48. Having carried out a review under article 12(5) of the AIE Regulations, I vary daa’s decision to refuse access to the draft EIS on the basis of article 9(2)(c) of the Regulations as follows:
(i) I find that the grounds for refusal contained in article 9(2)(c) should apply only to the Identified Undeleted Text, the Identified Deleted Text and the Comments;
(ii) I direct release of the remaining portions of the draft EIS.
49. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Peter Tyndall
Commissioner for Environmental Information