Decision
Ms. X and Department of Housing, Local Government and Heritage
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-151192-L4W9T4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-151192-L4W9T4
Published on
Whether the Department was justified in relying on articles 8(a)(iv) & 9(1)(b) of the AIE Regulations to refuse the appellants request
17 April 2025
1. On 7 May 2024, the appellant requested the following records from the National Park and Wildlife Service (NPWS) under Access to Information on the Environment (AIE) Regulations:
a. Copies of any internal/external reports on the establishment of a Wildlife Crime Unit.
b. Copies of any risk assessments made on either establishing/not establishing a Wildlife Crime Unit
c. Copies of internal or external correspondence in relation to establishing a Nature Conservation Directorate and a Wildlife Enforcement and Nature Protection Directorate rather than a single Wildlife Crime Unit.
It is noted that the NPWS is part of the Department and it is not viewed as a separate legal entity.
2. The Department responded on 5 July 2024. It refused access to the information requested under Articles 8(a)(iv) and 9(1)(b) of the AIE Regulations, as well as sections 29, 30 and 32 of the Freedom of Information Act 2014.
3. The appellant requested an internal review on 15 July 2024.
4. The Department replied on 9 August 2024 affirming its original decision, while also informing the appellant that:
“I have attached a schedule of records with this letter. This lists the records that I consider relevant to your request. It provides a brief description of each record and the decision I have made on each record. Where I have decided to refuse or partially refuse access to a record, it specifies the Article of the AIE Regulations under which this refusal has been made. Public interest test - In accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of your request. I have determined that there is no strong public interest to be served by disclosing the information you request.”
The schedule of records, which was attached with the internal review decision letter contains the following information:
“Record 1 – Refusal
Date of Record: April 2021
Brief description: Proposal to establish a Wildlife Crime Unit [Background]
No.of pages: 4
Record 2 – Refusal
Date of Record: 2 June 2021
Brief description: Observations on the proposed Wildlife Crime Unit
No.of pages: 7”
5. The appellant appealed to this Office on 13 August 2024.
6. Following engagement with this Office, the Department issued a revised internal review decision to the appellant on 19 December 2024, wherein it part-granted access to record 1 with some information redacted but it upheld its initial decision to refuse access to record 2. In reaching its decision regarding record 1, the Department redacted certain sections of the record which the Department stated contained sensitive information and elements of confidentiality, in that they set out:
“a) Details of training required of officers that would equip them to be able to respond in court on prosecutions i.e. what areas they need training on e.g. legislation, court procedures etc.;
b) Types of technology and equipment that may be deployed for wildlife crime investigations;
c) Outlines wildlife crimes that operations would specifically target;
d) Internal review process for prosecution.”
7. In light of the Department’s revised internal review decision, this Office inquired with the appellant if she wished to proceed with the appeal. On 28 January 2025, the appellant advised this Office that she wished to proceed with the appeal.
8. I am directed by the Commissioner for Environmental Information 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 Department. I have also 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’)
• The Wildlife Act 1976 -2018 (‘the 1976-2018 Act’)
9. My review in this case is concerned with whether the Department was justified in withholding certain information in record 1 and all of record 2 under articles 8 (a)(iv) & 9(1)(b) of the AIE Regulations.
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. Article 8(a)(iv) of the AIE Regulations provides:
“A public authority shall not make available environmental information […] where disclosure of the information—
(a) would adversely affect ---
(iv) […] the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Act”
12. There are a number of elements, which must be satisfied before a refusal of information under article 8(a)(iv) arises:
I. The case must involve “proceedings” of public authorities;
Those proceedings must be the final stage of decision-making
II. Those proceedings must have an element of confidentiality;
III. That confidentiality must be adversely affected by the disclosure of the information requested; and
IV. That confidentiality must be protected by law.
13. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality of the final stage of decision-making being undermined must be reasonably foreseeable and not purely hypothetical.
14. The Department has made submissions stating that that these records relate to “the deliberative process relating to the establishment of a Wildlife Crime Unit as provided for under FOI Section 29 and 30 of the FOI Act”. The Department further stated that “how NPWS considers how it organises its internal structures to address crime is considered to be proceedings of the Department and are deliberative”.
15. The Department should note that the exemptions provided for in section 29 and 30 of the FOI Act are broader than the exemption provided for in article 8(a)(iv) of the AIE Regulations. It is clear from the relevant case law that “proceedings” referred to in article 8(a)(iv) refers only to the final stages of the decision-making process of public authorities (Flachglas at para 63) and not to the entire deliberative process that may be encompassed by section 29 and 30 of the FOI Act. In the Saint-Gobain case, the Court of Justice found that “as observed by the Advocate General at point 76 of his Opinion, Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings” (see para 81). While this case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention on which both the Directive and the Regulations are based.
16. Having reviewed the content of the relevant records, I am not satisfied that they relate to the final decision-making stage relating to the establishment of a Wildlife Crime Unit or the final stage of any decision-making process as to how the NPWS organises its internal structures to address crime. Record 1 is a proposal regarding the establishment of a Wildlife Crime unit dating from April 2021. The proposal is brief, at just over three pages in length and the content is relatively high level. Record 2 contains comments/observations on record 1 from a staff member of the NPWS. While these records may have been taken into account at the final decision-making stage, I consider that they do not provide any information on the final decision as to whether or not a wildlife crime unit would be established or how the NPWS organises its internal structures to address crime. These records do not contain any information on how that decision was made, who made the decision, or what may have influenced the decision. As article 8(a)(iv) only protects the final decision-making stage of the proceedings, and not the process leading up to that decision, I cannot find that the confidentiality of the proceedings would be adversely affected by the release in full of records 1 and 2. I therefore find that article 8(a)(iv) does not apply to the information sought.
17. Article 9(1)(b) of the AIE Regulations provides as follows:
“(1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect—
(b) the course of justice (including criminal inquiries and disciplinary inquiry)”
18. It is evident from the wording of article 9(1)(b) that there must be some adverse effect on the course of justice, in order for the exception to apply. Accordingly, when relying on this article, it is imperative that the public authority sets out the reasons why it considers that the disclosure of the information at issue could specifically and actually undermine“the course of justice” , as ruled by the CJEU at paragraph 69 of Land Baden-Wurttemberg v DR, Case C-619/19. Additionally, it is important to ensure that the risk of “the course of justice” being undermined must be reasonably foreseeable and not purely hypothetical.
19. In its submission to this Office, the Department relies on article 9(1)(b) to part-grant access to a redacted copy of record 1 and to refuse access to record 2, as it says that it would have“an adverse effect on the law enforcement functions and structures of NPWS” . The Department is of the view that the release of the information sought would provide an unfair insight into the training requirements of NPWS authorised officers, types of technology deployed in relation to wildlife crime, the types of wildlife crime that operations would target and the internal review process for procedures. It contends that there would be a risk of undermining the NPWS authorised officers’ ability to perform its functions in relation to wildlife enforcement and therefore, that publication would have an adverse effect on the course of justice.
20. Having reviewed the information sought, I am not satisfied that the Department has demonstrated sufficiently that the release of records 1 and 2 would cause a reasonably foreseeable risk on the ability of the NPWS to prosecute crime in the future. The information contained in the withheld records is high level, and contains no specific or detailed information in relation to particular cases, locations or how and when the NPWS might deploy specific types of technology. The refused information is of such a general nature that I cannot see how it could give any advantage to defendants of current and future prosecutions as argued by the Department, or otherwise adversely affect the course of justice. Accordingly, I find that article 9(1)(b) does not apply to the information sought.
21. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision. I find that the Department was not justified in refusing the appellant’s request for records 1 and 2 on the basis of articles 8(a)(iv) & 9(1)(b) of the AIE Regulations. I hereby, direct the Department to release the requested environmental information contained in records 1 and 2 to the appellant.
22. 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