Decision
Ms X and Department of Housing, Local Government and Heritage
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-112753-L1J3Q4
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-112753-L1J3Q4
Published on
Whether the Department was justified in refusing access to parts of the information requested under article 9(1)(c) and any further information falling within the scope of the request under article 7(5)
29 January 2024
1. On 24 June 2021, the appellant made the following joint Freedom of Information and AIE request to the Department:
“On behalf of Coastal Concern Alliance, under the European Communities (Access to Information on the Environment) Regulations 2007 and Section 12 of the Freedom of Information Act 2014, I hereby request the following information which is non-personal in nature relating to a benthic survey of the Codling Bank, commissioned by NPWS Science and Biodiversity Unit in or around 2012.
This survey was referenced in a Record sent to us from NPWS in response to an FOI/AIE request that has now been closed. However, the Wildlife Inspector who was in charge of the FOI suggested that a separate FOI/AIE request was necessary to obtain additional details in relation to the Codling Survey. We are in receipt of the Final Report, Subtidal Benthic Investigations of the Greater Codling Bank (NPWS, October 2012).
Specifically, we wish to know details of the process by which this Survey was commissioned, information relating to the decision to undertake the survey, the tendering process and the decision-making in relation to the awarding of the contract to Aquafact, who carried out the work. According to the information provided to us, draft results were forwarded to NPWS in October 2012. Please provide details of this, and all other communication with the contractor in relation to this survey.
We are aware of the communication in relation to this survey between the contractor and NPWS. However, if there was communication with other individuals, Departments, agencies etc. in relation to this survey, for example (but not exclusively) Dept of the Marine, Sustainable Energy Authority of Ireland, Marine Coordination Group, Irish Offshore Operators Association etc. please include these.
In relation to the interpretation of the survey results, please provide details of this process, the personnel involved (not names but responsibilities in NWPS) and details of the rationale for the conclusions drawn, including dates and minutes of meetings etc..
We note from the Final Report, Subtidal Benthic Investigations of the Greater Codling Bank (NPWS, October 2012), that the contractor drew attention to the presence of a reef forming polychaete, Sabellaria Spinulosa, stating that reefs formed by this species are protected under OSPAR. They also suggested that 'further exploration may be required to determine the presence of reefs in this locality'. Can you confirm whether further attention has been given to this finding and whether the suggested 'further exploration' has taken place.
The Report sent to us as part of the previous FOI/AI stated: 'The findings of our recent Codling Bank survey were very surprising in so far as it found much of the Codling Bank area does not fall within the definition of the Annex I habitat sandbank. Therefore the estimated national area of sandbank has been substantially revised downwards.'
Please clarify, according to your assessment of the results of this survey, what area of the Codling bank does comply with the definition of the Annex 1 habitat sandbank, and where is this area located?”
2. The Department contacted the appellant via email on 16 July 2021 to seek clarification as to the specific documents the appellant was seeking, noting that her request referred to “details” but not records. The Department stated that, “for instance”, it held the Business Case where approval was sought to proceed with the survey, emails confirming that such approval was granted, and a copy of the Request for Tenders that it had issued. It asked the appellant whether she was seeking access to all of the records listed, a subset of them, or other types of records.
3. The Department also stated that it had no records in relation to communications with other Departments or bodies or records of discussions with the contractor in the course of the survey. It stated that it did have a copy of the Draft Report and indicated it would be releasing it under FOI/AIE.
4. The appellant responded on 17 July 2021. She confirmed that all of the records listed by the Department “would be useful”, but stated that while the Request for Tenders document may be of interest, she wished to know about the totality of the process which resulted in the awarding of the contract to the successful tenderer. The appellant stated that she had already received the Draft Report so the Department did not need to provide it again.
5. In its original decision of 19 July 2021, the Department stated it had identified five records relating to the appellant’s request. It said that it was granting access to “all of the records” save for the redaction of personal information on the basis that such information was outside the scope of the request.
6. However, despite referring to five records, the Department went on to state that the enclosed schedule made reference to a 12th record that was created to answer the queries contained in the appellant’s request, and that records 1-11 were being released under the appellant’s parallel FOI request.
7. The Department also sought to charge the appellant for one hour of search and retrieval of relevant records.
8. The accompanying schedule provided by the Department listed 12 records. The schedule indicated that records 1-4 and 12 were being released in full and that the remaining seven records, records 5-11, were being released in part, with personal information refused on the basis that it was outside the scope of the appellant’s request. Records 5-11 consist of letters from the Department to tender applicants detailing their respective scores, with the names of staff members of the tender applicants being refused on the basis that the names consisted of personal information and were therefore outside scope.
9. In several instances, the names of companies were also redacted from some of these letters by the Department, though the Department did not specify this in the accompanying schedule or provide any explanation for these redactions in its decision.
10. It seems from the appellant’s internal review request that the appellant and the Department may have engaged in correspondence in advance of her internal review request. In that request, the appellant referenced commercially sensitive information but the Department made no reference to commercially sensitive information in its original decision.
11. In any event, the appellant sought an internal review of the Department’s decision. The appellant asserted that some of the records she received never included the names of the companies involved and were not signed, presumably referring to letter records. The appellant stated that the RFT document dated 21 May 2012 indicated information provided by tenderers may be disclosed under FOI legislation. The appellant went on to state that it was clear that tender applicants “[…] have the right to specify information that they deem to be commercially sensitive and if they do not so specify, the information is likely to be released under FOI. In this instance we have not been made aware of any such communication from Tenderers.” The appellant argued that such tendering processes should be fully transparent, follow public procurement guidelines and that responsible Departments should be fully accountable.
12. The Department did not issue an internal review decision within the statutory deadline and the appellant appealed to this Office on 13 September 2021 on the basis of the Department’s deemed refusal of her internal review request.
13. The Department issued separate internal review decisions in respect of the FOI and AIE elements of the appellant’s request.
14. In its late AIE internal review decision of 29 September 2021, the Department varied its original decision, stating it was granting access to additional records. It went on to state that in processing the appellant’s identical internal review request under the FOI Act 2014, it had released an email record dated 29 June 2012. The Department stated that there were no other records to be released under the internal review of the AIE request.
15. The Department went on to discuss the public interest, making reference to EU Directives on public procurement, along with section 36 of the FOI Act 2014 which, broadly speaking, concerns commercially sensitive information. The Department said that, having weighed the public interest, it was granting access to “the record showing the names of the bidders, together with some details of the analysis of their bids in the Department.”
16. The Department refused access to “individual marks for pricing, expertise and experience and service delivery and some of the comments of the tender analysis under these categories.” The Department stated that it was likely that if it released such details “it may harm the reputation and commercial standing of unsuccessful companies, and these and other companies in their sector may not bid for future competitions as a result, thereby limiting the market and potentially reducing the value for money element of future competitions.” Although unclear from the Department’s decision, the Department cited Article 9(1)(c) in the accompanying schedule in respect of its refusal of this marking and assessment information.
17. Finally, the Department stated it considered all previously supplied records, including those subject to redactions, as “properly dealt with”.
18. The manner in which the Department prepared the schedule provided with its internal review decision is somewhat confusing. The Department listed 16 records, as opposed to the 12 records initially identified at original decision stage. It appears the Department also employed a different numbering scheme to the original decision schedule. The schedule cites Article 9(1)(c) in refusing access to six records: parts of the Business Case (record 1), and five of the letters to tender applicants detailing their respective scores (records 6-10).
19. I note from copies of communications provided to this Office that it appears that the appellant and the Department engaged in correspondence during and after the AIE original and internal review decision making process and the appellant’s appeal to this Office in an effort to clarify the information and records sought by the appellant and the information and records actually held by the Department.
20. The appellant, however, remains unsatisfied with the Department’s position on the matter and has proceeded with this appeal.
21. I am directed by the Commissioner to conduct a review of this appeal. I have now completed this 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’).
22. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Information outside the scope of the request
23. As mentioned above, the Department refused access to the names of staff members of tenderer’s contained in letters it issued to tenderers to inform them of their scores. It did so on the basis that such names were personal information and therefore outside the scope of the appellant’s original AIE request, which referred to information that was “non-personal” in nature.
24. This Office’s investigator informed the appellant of his view that personal information was outside the scope of her original request and consequently this review, and that therefore he did not intend to consider information refused by the Department on that basis.
25. In a submission dated 12 June 2023 the appellant argued that the names of individuals do not amount to personal information. Specifically, she contended that the names of individuals who are charged with carrying out their duties on behalf of the public body are not personal information, apparently drawing on part of the definition of personal information contained in section 2 of the Freedom of Information Act 2014 (the FOI Act).
26. However, section 2 of the FOI Act provides that the names of individuals are personal information where they appear with other personal information relating to those individuals. It also provides that personal information includes information relating to the employment or employment history of an individual.
27. The appellant is correct insofar that paragraph I of that section excludes certain matters from the definition of "personal information", including the names of staff members of an FOI body and information relating to their office, along with the names of service providers to FOI bodies and information relating to the service provided.
28. However, the exclusion at Paragraph I does not exclude all information relating to staff members or service providers. It is intended, in essence, to ensure that section 37 of the FOI Act cannot be used to exempt the identity of a public servant in the context of the position held while carrying out his or her official functions, or a service provider carrying out a service on behalf of an FOI body. It does not deprive public servants or service providers of the right to privacy generally.
29. Having reviewed the information in question, is clear to me that in the context of these particular records, these are not the names of staff members of public bodies, nor the names of individuals charged with carrying out duties on behalf of public bodies, i.e. the names of service providers. Rather, these are the names of the staff of one successful and several other unsuccessful tenderers. Accordingly, I am satisfied that the names of these individuals amount to personal information.
30. Even outside the context of the FOI Act, a plain reading of the phrase “I hereby request the following information which is non-personal in nature […]” clearly excludes the names of individuals. I am therefore of the view that it was reasonable for the Department to interpret the appellant’s request as excluding the names of individuals and any other personal information. I am satisfied that such information is outside the scope of the appellant’s request and consequently this review. Should the appellant wish to access this information, it is open to her to make a fresh AIE request to the Department.
31. I should note that it appears that the appellant was in fact able to access some or all of the information redacted by the Department in the records at issue, including the names of the staff members of tenderers I have just discussed above, due to an issue with the manner of redaction used by the Department. However, this unintended error on the Department’s part does not amount to release under the AIE Regulations and does not mean the information is publicly available. Accordingly, I am proceeding on the basis that the information in question has been refused by the Department.
32. Finally, it appears from several of these letter records that the Department has also redacted the name of the tenderer company, in addition to personal information relating to staff members. I am satisfied that the names of tenderer companies are not personal information, and therefore are within the scope of the appellant’s request, and will be addressed further below.
Appellant’s queries as to the format, content, and nature of records
33. In addition to raising queries in relation to the existence of other information and records, the appellant also raised queries as to the format, content and nature of the information and records identified by the Department in her submissions to this Office. For instance, in her submission of 12 June 2023, the appellant stated:
“Records 6-11 were released in unusual circumstances where the Decision letter accompanying the release stated that five records were being released. Records 6-11 were not released in their original 2012 format and no company names were included in the letters. In contrast, a letter written offering the contract for the Codling Survey to Dr O’Connor is presented in Record 4 Internal Review (page 16). This record is shown in its original format, with the company name clearly displayed on the letter and the name and signature of the sender also clearly shown.
We are still of the opinion that Records 6-11 have not been released in original format and
request their release in a format that shows that they are original 2012 records, as required under the terms of our AIE request.” The appellant’s request, however, did not make any specific requests as to the form or format of the information sought.
34. Article 3(5) of the Directive requires Member States to ensure that “officials are required to support the public in seeking access to information” and that “the practical arrangements are defined for ensuring that the right of access to environmental information can be effectively exercised”. Article 7(1) seeks to ensure that public authorities are required “to organise the environmental information which is relevant to their functions and which is held by or for them, with a view to its active and systematic dissemination to the public, in particular by means of computer telecommunication and/or electronic technology, where available”. Article 7(2) provides that “the information to be made available and disseminated shall be updated as appropriate”.
35. However, the Regulations do not provide me with jurisdiction to review public authorities’ compliance with articles 3(5) and 7(1) of the Directive. Article 12(5) of the Regulations permits me to do the following on receipt of an appeal:
(a) review the decision of the public authority,
(b) affirm, vary or annul the decision concerned, specifying the reasons for [my] decision, and
(c) where appropriate, require the public authority to make available environmental information to the applicant.
36. Accordingly, this Office has no role in investigating, assessing or making any finding in relation to the authenticity, accuracy or completeness of any information held by or for a Public Authority.
37. In addition to raising concerns as to the authenticity of the information and records at issue, the appellant, in correspondence with this Office, also raised a significant number of queries in relation to the substantive content of the information released by the Department on foot of the request to which this review relates and in relation to information/records released under previous AIE and FOI requests. In doing so it appears the appellant is seeking to interrogate the information provided by the Department by posing questions regarding the decisions, actions, views and opinions of the Department and its staff based on the information that had been released to her. These matters are outside the scope of this review.
38. AIE is concerned with access to environmental information held by public authorities within the meaning of the AIE Regulations, as opposed to access to records or documents. Accordingly, while generally speaking an AIE request will take the form of a request for environmental information, it is open to a requester to make an AIE request in the form of a question or series of questions seeking specified environmental information. However, in this review, my jurisdiction is limited to reviewing the internal review decision of the Department and considering the request originally made by the appellant. It is open to the appellant to make a new request to the Department for additional information and in the event that she is unsatisfied with the outcome of that request, to appeal again to this Office.
Schedules prepared by the Department
39. I wish to briefly comment on the manner in which the Department prepared the schedules and numbered the subject records at original and internal review decision stage.
40. At original decision, the Department referred to five records but went on list 12 records in the corresponding schedule numbered 1-12.
41. The internal review decision indicated that the Department had identified additional relevant records. The internal review schedule listed 16 records, numbered 1-16. It initially appeared to this Office that the Department had simply identified four further records, in addition to the 12 records identified at original decision stage, but had renumbered the records in a different order.
42. However, upon further inspection, this Office’s investigator identified unexplained inconsistencies between the two schedules and the information/records they describe. The descriptions and names of many of the 16 internal review records do not appear to correspond with the 12 original decision records. The original schedule, for example, indicates that the Business Case document consists of one page and was released in full by the Department. However, the internal review schedule indicates that a similarly named Business Case document in fact consists of two pages and that parts of the document were refused under Article 9(1)(c).
43. The investigator raised these apparent inconsistencies with the Department, noting that it was not at all clear whether the two schedules concerned any of the same records and that while some of the records shared similar names across the two schedules, they seemed to differ from one another in other respects.
44. The Department did not respond to these queries in any of its submissions to this Office.
45. In the absence of any explanation from the Department, the only conclusion I can reach that explains the inconsistencies between the schedules and records at original and internal review decision stages is that the 16 records referenced at internal review decision stage are entirely separate and in addition to the 12 records referenced at original decision stage. It would appear then that, in total, the Department identified 28 separate records over the course of its original and internal review decisions.
46. In coming to this conclusion, I note that the internal review decision maker stated that “the decision made by the initial decision-maker should be varied, with the provision of additional documents as set out in the schedule hereto” and went on to state that “[a]ll previously supplied records, redacted where appropriate, are also comprehended by this internal review. I consider they are properly dealt with and disclosed as appropriate and I consider the redactions appropriate as set out by the original decision maker.”
47. The fact that the Department numbered the records identified at internal review decision from 1-16 despite having already identified 12 other records at original decision is highly confusing and misleading. This is compounded by the fact that the Department neither explicitly acknowledged this in its internal review decision nor clarified the issue when directly asked to do so by this Office.
48. While there is no obligation on public authorities to prepare schedules or identify records using any particular numbering or labelling scheme under the AIE Regulations or the AIE Directive, it is considered good practice to do so. To avoid the unnecessary confusion caused by the manner in which the Department prepared records in this case, I strongly suggest that when processing AIE requests in the future the Department endeavours to schedule records in a clearer manner.
49. Accordingly, the scope of this review is solely concerned with whether the Department was justified in refusing access to parts of the information requested under article 9(1)(c) and any further information falling within the scope of the request under article 7(5).
Article 7(5)
50. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
The appellant’s position
51. The appellant believes the Department holds further information falling within the scope of her AIE request which the Department has neither identified nor released to her.
52. In correspondence dated 12 June 2023, the appellant set out the “various documents” that she believed remain outstanding. In doing so, the appellant appeared to make direct reference to the requirements of the Department’s original request for tenders notice for tenderers to provide specific information and documents to the Department as part of the tender process. The appellant stated that she had not received many of these documents, despite the requirement on tenderers to provide them to the Department.
53. I do not intend to reproduce the appellant’s correspondence in its entirety in this decision, but, in summary, the types of information and records the appellant contended should have been identified and released by the Department include but are not limited to:
• various categories of tender documents, including certain statements from tenderers required under Irish and European Union Law
• records concerning subcontractors
• records in which tenderers identify information as commercially sensitive
• tenderer tax clearance certificates
• tenderer safety statements
• ArcView GIS shape files
• services contracts of the unsuccessful tenders
and various other types of information and records.
54. In this Office’s request for detailed submissions of 6 June 2023, the Department was asked to provide specific detailed information regarding the steps it had taken to search for, locate and identify any all environmental information captured by the appellant’s original request.
55. Furthermore, the Department was specifically asked to:
• explain why it had provided two differing schedules and sets of subject records to this Office and why they did not appear to correspond,
• set out which records and schedules had been provided to the appellant,
• prepare and provide a single detailed schedule of all of the records/environmental information at issue, setting out exactly what provisions of the Regulations were being relied upon by the Department to refuse access in respect of each record/piece of environmental information
• detail in the new schedule all relevant information/records identified by the Department as relevant to the appellant’s request,
• set out which information the Department refused on the basis that it is personal information, and which information it refused on the basis that article 9(1)(c) applies.
The Department’s position
56. The Department made its first submission on 21 October 2021, in response to this Office’s acceptance letter, and its second submission on 2 August 2023, in belated response to the focused submission request of 6 June 2023, referenced immediately above.
57. Following consideration of the Department’s late focused submission, and having regard to the appellant’s submission of 12 June 2023, this Office wrote to the Department and asked it to address the specific records and categories of records that the appellant had identified and expected the Department to hold. In response, the Department made a third submission on 7 November 2023.
58. Given the extent of the engagements between this Office and the Department, I do not propose to reproduce each of the Department’s submissions to this Office in full in this decision. It is also not necessary to do so given the Department identified further relevant information when preparing its third submission to this Office. However, I can confirm I have had regard to each of the submissions the Department has made.
59. In summary, the Department provided considerable details as to the steps it undertook to search for, locate and identify information relevant to the appellant’s request. These details included but were not limited to:
• context as to the subject-matter of the appellant’s request;
• details of the Department’s significant engagements with the appellant to:
i. clarify the precise nature of the information she was seeking, and
ii. address the appellant’s queries regarding the information the Department released.;
• the organisational areas within the Department that were searched for relevant information – the Scientific and Procurement Units;
• the types of files that were searched – paper and electronic;
• the locations of hard copy files that were searched – the Department’s Dublin and Cork offices;
• the locations of electronic files that were searched – the shared drive of the Scientific Unit and the personal drive of one staff member;
• the keyword used to conduct electronic searches – “Codling”;
• the breadth of electronic searches carried out – the entire file server was searched and not just folders that were judged to potentially have relevant records;
• that it would have been typical to telephone both the successful and unsuccessful tenderers and inform them of the result and that a copy of their own evaluation would be posted directly to them and that the circulated tender scores would be filed by procurement and held electronically by the scientific research project manager;
60. The Department also provided the following clarifications in response to specific matters raised in the appellant’s original request:
• Appellant request:
“We note from the Final Report, Subtidal Benthic Investigations of the Greater Codling Bank (NPWS, October 2012), that the contractor drew attention to the presence of a reef forming polychaete, Sabellaria Spinulosa, stating that reefs formed by this species are protected under OSPAR. They also suggested that 'further exploration may be required to determine the presence of reefs in this locality'.”
Department response:
“It is quite typical for researchers to indicate that there may be a need for further research in a report of this nature. It would be normal that this would be part of the terminus of contract discussions and if actions were required a further contract would be developed. Records of individual animals don’t constitute a “reef” habitat and it is the “reef” habitat that would be of interest. In any case this is outside of the terms of the original request.”
• Appellant request:
“The Report sent to us as part of the previous FOI/AIE stated: 'The findings of our recent Codling Bank survey were very surprising in so far as it found much of the Codling Bank area does not fall within the definition of the Annex I habitat sandbank. Therefore the estimated national area of sandbank has been substantially revised downwards.'
Please clarify, according to your assessment of the results of this survey, what area of the Codling bank does comply with the definition of the Annex 1 habitat sandbank, and where is this area located?”
Department response:
“Spatial analysis of this nature was not undertaken. This is also outside of the terms of the request because the complete report was circulated to the appellant.”
61. In its submission of 7 November 2023, the Department provided similar, if more detailed, information concerning the searches it had undertaken to locate relevant environmental information, as it had in previous submissions. In response to the queries raised by the appellant regarding the various categories of documents submitted by tenderers she had expected to receive, the Department stated that it had not found any records of the submissions made by unsuccessful applicants.
62. As a potential explanation as to why it could not find any such records, the Department contended that responses from unsuccessful tenderers may have been shredded in 2019, seven years from the time of the procurement process and as part of the NPWS’ preparations to relocate offices within Dublin, noting that no such records were found with archived contract documents. Despite this, the Department acknowledged that it could not confirm that any such records were in fact destroyed.
63. Despite previous statements to the contrary, the Department said that it had in fact identified a further relevant record or records. It stated that of the further records found at internal review stage, some of them include records which the appellant had specified in her correspondence with this Office as outstanding. The Department stated that the successful tenderer’s hard copy submission was discovered after the original decision was made and shared with the internal reviewer, but for reasons unclear to the Department, it was not released at internal review stage.
64. Furthermore, the Department stated that the successful tenderer’s hard copy submission include some of the categories of tenderer records specifically raised by the appellant as outstanding, such as CVs of tenderer staff, and that it may include other categories of such records such as “Records of statements confirming… legal obligations, relating to employment” and “Records concerning commercial sensitivity", but that due to time constraints the Department had not had an opportunity to confirm this.
65. The Department also stated that a copy of a “tax clearance certificate”, another record category identified as outstanding by the appellant, was found “in the archived records”. It is unclear whether the Department means that this record is part of the submission from the successful tenderer or is a separate record.
66. I acknowledge that the Department has provided this Office with significantly detailed information concerning the steps it undertook to identify environmental information relevant to the appellant’s request. I have no reason to doubt that the Department has engaged with this Office in good faith.
67. However, none of this offsets the fact that the Department neglected to consider the successful tenderer’s hard copy submission for release and carried out no analysis of that submission to ascertain whether it contained further relevant records.
68. In these circumstances, I consider that the manner in which the Department identified relevant information and records when processing the appellant's request falls below the standard required for cases of this type. Consequently, I do not have sufficient evidence before me to demonstrate that the Department took adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances.
Article 9(1)(c)
69. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states:
“The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it.” (paragraph 12.4).
70. When relying on article 9(1)(c) of the AIE Regulations, I am of the view that the public authority must be able to show:
• The information at issue is commercial or industrial in nature.
• The confidentiality of the information at issue is provided for in law to protect a legitimate economic interest.
• That economic interest, would be adversely affected by disclosure of the information at issue.
71. It is clear that there must be some adverse effect on the legitimate economic interest that the confidentiality is designed to protect. Accordingly, when relying on article 9(1)(c) the public authority must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the economic interest identified. The risk of the economic interest being undermined must be reasonably foreseeable and not purely hypothetical (see by analogy, C-57/16 P ClientEarth v Commission, paragraph 51).
72. Article 9(1)(c) must also be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
73. As the Department ought to be aware, articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. In this regard, the High Court in Right to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to [a]rticles 10(3), (4) and (5) and 11(4) of the AIE Regulations, 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” (paragraph 106). The Court held that in an absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
74. In its original decision, the Department made no reference to Article 9(1)(c) or commercially sensitive information and stated that it was only refusing access to personal information on the basis that such information was outside the scope of the appellant’s request.
75. In its internal review decision, the Department again made no reference to Article 9(1)(c) but did discuss commercially sensitive information. It did however refer to Article 9(1)(c) in the accompanying schedule.
76. I should say that the manner in which the Department set out its decision at internal review is difficult to follow. Under the heading “Public interest test” the Department stated that
“The EU Treaties set out the principles of fairness and openness in public procurement. EU Public Procurement Directives establish particular legal obligations on Contracting Authorities where the value of the contract is over specified thresholds. The guiding principles of openness, fairness and transparency will always apply, however, irrespective of the value of the particular contract.”
77. The Department contended “details of pricing structures, product specification, etc. may be protected where” any of the circumstances set out in section 36(1) of the FOI Act apply.
78. It stated that it was refusing access to “individual marks for pricing, expertise and experience and service delivery and some of the comments of the tender analysis under these categories.” The Department stated that it was likely that if it released such details “it may harm the reputation and commercial standing of unsuccessful companies, and these and other companies in their sector may not bid for future competitions as a result, thereby limiting the market and potentially reducing the value for money element of future competitions.”
79. The Department stated that, in accordance with Articles 10(3) and 10(4), it had weighed the public interest served by disclosure against the interest served by refusal of the request and determined that the public interest would not be served by disclosing the information requested.
80. The Department stated that in considering whether to release details of the tenders from unsuccessful bidders, it gave careful consideration to the public interest that may be served by their disclosure. It said that it had decided to grant access to the record showing the names of the bidders, together with some details of the analysis of their bids in the Department.
81. In refusing access to “individual marks for pricing, expertise and experience and service delivery and some of the comments of the tender analysis under these categories” the Department stated that it did not consider that the interest of openness and transparency did not outweigh the need to protect commercially sensitive information of this type.
82. The Department stated that it considered it likely that, should it release these details, it may harm the reputation and commercial standing of the unsuccessful companies, and that these and other companies in their sector may not bid for future competitions as a result, thereby limiting the market and potentially reducing the value for money element of future competitions.
83. In its initial submission to this Office of 21 October 2021, the Department made similar arguments to those contained in its internal review decision, and contended that while the tender process itself concluded a number of years ago, many, if not all, of the tenderers are still active in the area; release of sensitive data such as the names of the unsuccessful tenderers, along with their scores and associated commentary, is likely to adversely affect their interest in competing in future tendering processes.
84. In this Office’s request for submissions of 6 June 2023, the Department was asked a series of specific queries regarding its reliance on Article 9(1)(c). Among these queries, the Department was asked:
• whether the information at issue is commercial or industrial in nature,
• whether confidentiality is required to protect a legitimate economic interest(s),
• to explain how the economic interest(s) identified, and thereby its confidentiality, would be adversely affected by the disclosure of the information at issue,
• in doing so, to describe the nature of the adverse effect(s) expected;
• explain how the release of the particular information is expected to result in the adverse effect(s) identified;
• and explain why the Department considers the adverse effects(s) to be reasonably foreseeable.
85. This Office also noted in its submission request to the Department that all or nearly all of the information at issue is over a decade old. The Department was asked to explain how its reliance on Article 9(1)(c) was justified given the significant passage of time since the information at issue was created, the level of inflation that has taken place in the intervening years, and the fact that, despite the Department’s assertions in its initial submission, some of the tenderers may no longer be in business/exist in a commercial sense.
86. The Department did not address any of these queries or issues or provide any further information in support of its reliance on Article 9(1)(c) in its submission of 2 August 2023. Rather, the Department simply responded by stating that “[t]hese requests can only be addressed by the Decision Maker on this file who is currently on extended leave.”
87. This response from the Department is simply unsatisfactory. It is not reasonable that a public authority would not be in a position to justify to this Office its reliance on Article 9(1)(c), or any other exception contained in the Regulations, on the basis that a specified staff member is unavailable. It is neither appropriate nor credible that the Department is unable to explain its position or address this Office’s queries because a single individual is on extended leave.
88. The Department’s third submission of 7 November 2023 included some internal correspondence from September 2021 in which the original decision maker discussed the information she considered to be commercially sensitive. These details/views go very little way in explaining the Department’s position however.
89. While the Department argued in its internal review decision and its initial submission that the release of the names of the unsuccessful tenderers along with their score and associated commentary is likely to adversely affect their interest in competing in future tendering processes, it did not explain how or why that adverse effect would actually take place.
90. Similarly, the Department argued that reduced participation by the unsuccessful tenderers in future tendering processes would limit the market and potentially reduce the value for money element in such future competitions. Again, the Department did not explain how or why this negative outcome would come about, or how such a negative outcome amounted to an adverse effect, in particular considering the length of time that has passed since this particular tender.
91. In not engaging with this Office when asked to respond to specific queries regarding its reliance on Article 9(1)(c), the Department has failed to demonstrate why it considers that disclosure of the information at issue could specifically and actually adversely affect and thereby undermine the economic interests of the tenderers concerned. Furthermore, the Department has failed to show that the risk of the economic interest being undermined is reasonably foreseeable rather than simply hypothetical.
92. However, in the circumstances of this case, and particularly in light of the presence of third party information in the withheld information and the fact that no third parties appear to have been consulted / notified by the Department when it was processing the request, I do not believe that it is appropriate for this Office to direct release of the information at this point. I therefore consider that the most appropriate course of action to take is to annul the Department’s decision to refuse access to the information withheld under article 9(1)(c) and direct it to undertake a fresh decision-making process in respect of that information. The appellant will have a right to an internal review and a review by this Office if she is not satisfied with the Department’s decision.
93. Having regard to the above, I am not in a position to find that the Department has taken adequate steps to identify and locate all relevant environmental information held by it. As such, I cannot find that article 7(5) of the AIE Regulations can be relied upon by the Department. Furthermore, given the Department’s failure to adequately address this Office’s queries regarding its reliance on Article 9(1)(c), I find that it has not justified its refusal of information under that exception.
94. I consider that the most appropriate course of action to take at this stage is to annul the decision of the Department in its entirety, the effect of which is that the Department must consider the appellant’s request afresh and make a new, first instance decision in accordance with the provisions of the AIE regulations.
95. Given the time that has elapsed since the appellant’s original request, I would encourage the parties to liaise on the precise nature of the scope of the request. It is for the Department to ensure that any information coming within the scope of the request is properly identified. However, I would also reiterate that should the appellant be seeking information outside the scope of her original request, it is open to her to make a fresh AIE request for that information.
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