Decision
Mr F and Office of Public Works
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144139-W2C4W9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144139-W2C4W9
Published on
19 December 2024
1. On 12 September 2023, the appellant made an eight-item AIE request to the OPW requesting documents relating to a car park proposed to be built at Castletown House, Celbridge, County Kildare, within the date range of 1 May 2023 to the date of the request.
2. On 13 September 2023, the OPW announced by press release that it would not proceed with the car park.
3. On 16 October 2023, having received no response from the OPW to the AIE request, the appellant sought an internal review of the deemed refusal.
4. On 16 November 2023, the appellant appealed to this Office.
5. On 22 November 2023, the OPW issued a late internal review decision to the appellant together with a schedule of records that listed 15 records, two of which were indicated as partially released and all others as fully released. One record was redacted under both articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, whereas the other was redacted only under article 9(1)(c).
6. On 24 November 2023, the appellant confirmed to this Office that he intended to proceed with his appeal, stating that he was of the view that “the information released has been redacted, certain information has not been released and…there is further information which exists and which has not been retrieved.”
7. The OPW made written submissions to this Office on 19 January 2024 and provided further clarification, in response to queries from the investigator assigned to the appeal, on 15 February 2024.
8. In justifying the redactions, the OPW relied in part on the rights of two third parties. The investigator wrote to the OPW to request the name of the appropriate contact within each of the third parties. Having received no response to this request, the investigator wrote to the general public address of the third parties in question to request submissions. One of the third parties acknowledged the request by telephone, but neither provided substantive submissions.
9. I am directed by the Commissioner to carry out a 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 the OPW and I have examined the contents of the records at issue. In addition, I have had regard to:
• 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);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide).
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. In accordance with article 12(5) of the AIE Regulations, the role of the Commissioner is to review a public authority’s internal review decision and to affirm, annul or vary it. The scope of the Commissioner’s remit is limited to this decision-making process.
12. As explained below, this review concerns whether the OPW correctly applied one of the exemptions in the AIE Regulations originally relied upon in redacting certain information from the information provided and whether it was justified in refusing access to further environmental information on the grounds that the information requested was not held by or for the OPW within the meaning of article 7(1) of the AIE Regulations.
13. It is to be noted that during the course of the review of this appeal, a substantial amount of information relating to the information requested was published on the OPW webpage of the Government’s online information portal, a fact that was communicated to the appellant by the investigator of this appeal. Following this, , the appellant indicated that he was continuing to seek information in relation to part 1 of the request “a copy of the decision of the OPW to construct a temporary car park” as no information had been released relating to this part of the request. He confirmed that he was seeking the full release of the document relating to part 6 of his request, the traffic study, on the basis that where a public body engages a consultant, the identity of that consultant should not be exempted information. He confirmed that he did not require any further information from the other redacted record.
14. In summary, it is useful to indicate the information requested in items 1 and 6 which the appellant continues to pursue, as follows:
a. Item 1: “A copy of the decision of the OPW to construct a temporary car part [sic] to serve Castletown House including notes taken and minutes taken at the decision.” This information has not been provided by the OPW.
b. Item 6: “A copy of the traffic assessment and/or road safety audit in relation to the temporary car park to serve Castletown House.” This assessment/audit has been released in redacted form to conceal the name of the consultant firm that had been engaged to produce the document. This document is described on the schedule of records issued by the OPW as “draft traffic study”. I shall adopt this description in what follows for the sake of simplicity and succinctness.
15. 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 records and the extent to which I can describe certain matters in my analysis is limited.
Summary of submissions
16. As stated above, the appellant awaits the release of information relevant to part 1 of his request and is of the view that, in relation to the redacted part of the record associated with part 6 of his request, that “where a public body engages a consultant to provide services relating to the functions of that public body, the identity of that consultant cannot be exempted information.”
17. For its part, the OPW has indicated in submissions to this Office that it had contacted the consultant firm that carried out the “traffic study” (the “traffic assessment and/or road safety audit in relation to the temporary car park to serve Castletown House” [see paragraph 14.b. above] in regard to disclosure of the full record for the purposes of fulfilling a Freedom of Information (FOI) request. In response, this third party indicated that it would accept its release insofar as it was not identifiable arising from “potential impacts felt because of [its] involvement on the project.” According to the OPW’s submissions, this response prompted the AIE decision-maker to appropriate article 9(1)(c) of the AIE Regulations (see further below) to redact the record, subject to the provisions of article 10 which requires public authorities to carry out a public interest balancing test prior to implementing exemptions in the Regulations, such as that enumerated in article 9(1)(c), namely to weigh the factors in favour of release of information against factors that weighed in favour of partial or non-release. Following this test, the OPW “determined that [the] public interest would not be better served by disclosing some information of the record as this would damage the reputation of the third party and did not impact on the overall integrity of the record with this information undisclosed.”
18. In further submissions provided by the OPW to this Office, it gave more detail in relation to the exercise by it of article 9(1)(c) in order to redact the record associated with item 6 of the request.
Adequacy of search: article 7(5)
19. On internal review, the OPW released 15 records to the appellant, two of which were partially redacted and one of which remains part of this review.
20. As there was no original decision, the internal review was the first opportunity the appellant had to consider whether the OPW had accounted for all records within the scope of the request. In his appeal to this Office, the appellant stated that he believed there was further information which existed and which had not been retrieved.
21. In its submissions, the OPW responded to the suggestion that there were other records by affirming that, to the knowledge of the decision-maker, all records had been retrieved relevant to the request at the time, that all necessary actions in achieving this were carried out, and that this remained the assumption of the OPW at the time of the submissions.
22. This statement provided no explanation to this Office or to the requester to give confidence that adequate searches had, in fact, been carried out. A public authority has a duty under the AIE Regulations and under general principles of administrative law to provide reasons for its decisions.
23. In response to specific queries from the investigator, the OPW confirmed that:
• A list of relevant people was compiled from those individuals involved in planning and designing the temporary car park. The staff members involved were individually canvassed and asked to release their relevant records. The relevant persons were Assistant Secretary, Director, National Historic Properties, Park Superintendent, HEO (Higher Executive Officer) and Estate Manager.
• The nature of the search was a physical search and review of all of the electronic records supplied by the parties.
• No records had yet been archived as it was a live case. Records are retained indefinitely except for obviously trivial records such as those regarding meeting availability, timing, ‘thank you’ messages and the like.
• Given the number of FOI and AIE requests on the subject matter of the request, the OPW has compiled a significant volume of records following multiple searches, for which reason it is most unlikely that anything substantive remains which has not been released.
24. In further correspondence related to item 1 of the appellant’s request, see paragraph 14. a. above, relating to the decision by the OPW to construct a temporary car park at Castletown House, the OPW has indicated to this Office that “there was no written decision. Any discussions or decisions made were made verbally and there is no written record beyond what has been already released to the appellant” and “[w]e do not have a minute of the decision to construct a temporary car park. All records which informed the decision have already been released to the appellant.”
25. I am satisfied, based on the responses to the investigators’ queries and to the further correspondence received relating to item 1 of the appellant’s request, that no further information exists. However, it is regrettable that a similar level of detail was not provided to the appellant in the internal review decision.
Commercial or industrial confidentiality: article 9(1)(c)
26. Article 9(1)(c) of the AIE Regulations permits a public authority to refuse to make environmental information available where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided in national or Community law to protect a legitimate economic interest. This is subject to article 10 of the AIE Regulations, which requires a public authority to consider each request on an individual basis and to weigh the public interest served by disclosure against the public interest served by refusal, interpreting the grounds for refusal on a restrictive basis having regard to the public interest served by disclosure.
27. The redacted part of the record that has been partially withheld is the name of a firm of consulting engineers that commissioned a draft traffic study, the record that has been redacted by the OPW, relying on the exemption in article 9(1)(c) of the Regulations.
28. In relation to the redaction of the names of third parties in the two records that suffered partial release to the appellant (the full disclosure of one of which, as stated above, is no longer required), the OPW argued as follows:
“It was determined that the disclosure of the names of the third parties that were to be involved in a ‘controversial’ project that was in a preliminary phase would consequence potential impacts to be felt if made identifiable. This satisfied the decision maker to appropriate article 9(1)(c) of the AIE Regulations discretionary grounds for refusal, subject to the provisions of article 10.”
29. In relation to the draft traffic study that remains part of this review, the OPW argued as follows:
“Upon contact with the third party re. disclosure of the record for the purposes of fulfilling an FOI request, the third party indicated that they would accept it be released insofar they were not identifiable for potential impacts felt because of their involvement on the project. This satisfied the decision maker to appropriate article 9(1)(c) of the AIE Regulations discretionary grounds for refusal, subject to the provisions of article 10.”
30. This Office sought further clarification from the OPW on why it had determined that the release of the draft traffic study would adversely affect commercial or industrial confidentiality. In response, the OPW referred to its having contacted the third party by telephone and to the strenuous objection expressed by said party to the release of its name as, according to the OPW, “ongoing protests [to the construction of the proposed temporary car park] were judged to be highly controversial”. The OPW further stated that the third party did not want its name “to be associated with this” and was “strongly of the opinion that [its] company name should be redacted.” According to the OPW, while the protests had been directed at the OPW or the State in general, they had “also encompassed …companies including service and supply companies”, its being of the view that it was “understandable that a firm would request that its name [be] not associated with this project” and that it was “reasonable to accede to [such a] request” from the third party in question.
31. A necessary element of applying article 9(1)(c) is identifying the relevant national or Community law which provides a basis for the confidentiality of the information sought. When asked to provide clarity on the legal basis relied upon in this instance, the author of the OPW response stated that he was “not familiar enough with the relevant legislation to respond to this.”. As this is a necessary part of establishing that article 9(1)(c) applies to withheld information, I find that the OPW have not shown that article 9(1)(c) can be relied upon in this instance and I will annul the decision on this basis.
32. I have already alluded (at paragraph 13 above) to a significant amount of information relating to the proposed purchase of lands and the construction of a proposed temporary car park having been published by the OPW on the Government’s online portal at www.gov.ie. On that portal, in Published Documents to 23 December 2023 – Part 2 at page 3, in a table within a section that deals with temporary car parks under the heading “Assessment in line with KCC [Kildare County Council] requirements”, the very first item in the left-hand column of the table consisting of two columns, under the title “Issue to be addressed” is “Traffic Impact Assessment”, in other words the draft traffic study that is the record redacted by the OPW and which forms part of the review of this appeal. The title in the right-hand column of the table is “Response” and immediately underneath it, opposite the line with “Traffic Impact Assessment” appears the name of the third party redacted in the record by the OPW and explicitly identified in the table as the entity commissioned to carry out the draft traffic study. Given that the name of the third party associated with this project is already in the public domain, I can see no further adverse effect that could occur from the release of this information.
33. Having carried out a review under article 12(5) of the AIE Regulations, I vary the OPW’s decision. I affirm its decision to refuse information associated with item 1 of the appellant’s request as, following adequate searches, I am satisfied that it is not held by, or for the OPW in accordance with article 7(1) of the AIE Regulations. I annul the OPW’s decision to withhold the unredacted version of record no. 15 on the schedule of records, namely the draft traffic study, and direct its release to the appellant.
34. 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.
Julie O’Leary
On behalf of the Commissioner for Environmental Information