Decision
Mr A and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-129253-V8R6Z0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-129253-V8R6Z0
Published on
Whether the Department is entitled to rely on articles 9(2)(a) & 9(2)(b) of the AIE Regulations to refuse the information requested by the appellant
1. On 2 August 2022, the appellant requested the following:
Information to include, but not restricted to;
AFFORESTATION SCHEME FORM 1(a): Notice of Planting
AFFORESTATION SCHEME FORM 1(b): Notice of Substantial Commencement
AFFORESTATION SCHEME FORM 1(c): Notice of Completion of Planting
Information on any Notification of Material Changes”.
2. On 17 August 2022 the Department contacted the appellant asking him to refine the request to a particular county. The appellant did not wish to refine his request.
3. The Department replied on 2 September 2022, informing the appellant that his request was being refused under article 9(2)(a) of the AIE Regulations on the basis that it was manifestly unreasonable.
4. On 2 September 2022 the appellant requested an internal review of the decision based on a deemed refusal of the original request, as the decision letter was issued by the Department one day late.
5. The Department issued its internal review decision on 23 September 2022, acknowledging that the original decision letter was issued one day late. The Department advised the appellant it was varying its original decision. The Department had now decided to release information in relation to the forest road licence notifications in question, while refusing access to the records requested in relation to felling licences under articles 9(2)(a) and (b). The internal review also advised the appellant that the Department “do not get notifications for afforestation licences”.
6. The appellant appealed to my Office on 29 September 2022.
7. I have been 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. In addition, I have had regard to:
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered
8. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
9. As outlined above, although the Department initially refused the appellant’s request in its entirety, at internal review stage, it granted access to information relating to forest road licence notifications. The appellant’s request seeks commencement and completion notices for all forestry schemes between 1 July 2022 and 2 August 2022. As outlined above, the Department’s internal review appears to indicate that the information sought by the appellant in relation to felling licences was being refused on the basis of article 9(2)(a) and article 9(2)(b) while information relating to afforestation licences was being refused on the basis that no such notifications were held by or for the Department. In his appeal to this Office, the appellant stated that he wished “to appeal the decision of [the Department] to refuse [his request] on the basis of article 9(2)(a) and 9(2)(b)”. In subsequent submissions to this Office, the appellant stated that his appeal concerned “the refusal to provide information on felling licence notifications and the fact that the decision has not indicated if any records exist in relation to notifications of material changes”. The jurisdiction of this Office under article 12(5) of the Regulations is to review decisions of public authorities following the receipt of an appeal initiated in accordance with article 12(4). This Office therefore bound by the terms of the appeal submitted by the appellant on 29 September 2022 which is limited to the Department’s reliance on articles 9(2)(a) and 9(2)(b) of the AIE Regulations to refuse to provide information on felling licence notifications as requested by the appellant.
10. This review is therefore concerned solely with whether the Department was justified in refusing a part of the appellant’s request under articles 9(2)(a) and 9(2)(b) of the AIE Regulations.
11. I note that the original decision letter was sent to the appellant one day late due to an administration error which is unfortunate. I would ask the Department to be mindful of the relevant deadlines when dealing with AIE requests in the future.
12. I also note that the Department did engage with the appellant in an effort to have the request refined which is welcome.
Position of the Parties
The appellant
13. The appellant submits that he did not wish to refine his request in this case as he believes that the range of information sought is reasonable. In addition to this the appellant contends that if the Department believed that the volume of records sought was an issue it was open to the Department to seek to apply a one-month extension. The appellant also submits that he believes his original request is not formulated in too general a manner and is very specific in terms of its content and time period and that adequate reasoning was not provided by the Department in refusing his request.
**The Department
14. The Department made brief submissions to this Office in which it submitted that it would need to manually review each licence issued during the period of time in question to see if a specific condition is stipulated in order to fully grant the records requested. This would amount to a manual review of 766 files as the iforis system on which the majority of the information is held does not record this information in a manner which would make it easily searchable.
15. The Department also submit that it would take “many hours” work to compile the records for the reasons set out above as it would require a manual process.
16. The Department also advise that it would be “happy to provide information on individual licences that the requester is concerned about, rather than attempting to facilitate such a manifestly unreasonable request.”
17. A further request for submissions was issued to the Department by this Office but no additional submissions were received.
18. Article 9(2)(a) provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
19. Article 9(2)(a) must 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(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 7(4)(c) of the Regulations requires a public authority to specify the reasons for refusal of a request.
20. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is important to note that both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. The fact that a request is detailed does not mean that it is necessarily unreasonable.
21. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, it is necessary to examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. The findings of the Court of Justice of the European Union (CJEU) in T-2/03 Verein für Konsumenteninformation v Commission, at paragraphs 101-115, suggest that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. If a public authority wishes to rely on the manifestly unreasonable nature of a request to refuse all or part of that request, it should be in a position to clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
22. In that regard, the test set out by the CJEU at paragraph 69 of its decision in C-619/19 Land Baden-Württemberg v DR should be borne in mind:
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”.
23. The European Commission’s First Proposal for the AIE Directive ( COM/2000/0402 final - COD 2000/0169 ) envisaged that the exception in article 4(1)(b) of the Directive would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit”. It went on to acknowledge that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities” before noting that “authorities should be able to refuse access in such cases in order to ensure their proper functioning”. The interest which the “manifestly unreasonable” exception seeks to protect therefore is the interest in ensuring a public authority is not overburdened by a request, to the extent that this significantly interferes with its ability to perform its other tasks and duties.
24. That being said, it is also important to bear in mind the duties imposed on public authorities by articles 7 and 3(5) of the AIE Directive in relation to the organisation and dissemination of environmental information. The extent to which the obligations contained in articles 3(5) and 7 have been transposed by the Regulations has not been fully explored. It is clear from the jurisprudence of the CJEU, in cases such as C-188/89 Foster v British Gas plc, that these obligations can have a direct effect on public authorities to the extent they can be considered emanations of the state. I accept that the jurisdiction conferred on this Office by article 12 of the AIE Regulations relates to decisions on individual access requests, and not directly to the obligations relating to proactive dissemination. However, the requirements contained in article 7 are relevant to the obligation to interpret the AIE Regulations teleologically, having regard to the purpose of the Directive, when performing the functions provided for by article 12 of the AIE Regulations. This flows from the decision of the Supreme Court in National Asset Management Agency v Commissioner for Environmental Information [2015] IESC 51, and the doctrine of indirect effect first set out by the CJEU in C-14/83 Von Colson v Land Nordrhein-Westfalen. The exception in article 9(2)(a) of the AIE Regulations is not intended to endorse any failure by public authorities to comply with their duties to organise and disseminate information. This means that when considering the workload imposed by a request, it is important not to allow for a situation where a failure to comply with the obligations imposed by articles 7 and 3(5) of the Directive and article 5 of the Regulations, increases the prospect that a public authority will be able to successfully rely on the “manifestly unreasonable” exception. This would lead to a perverse situation whereby failure to comply with certain obligations under the Directive and Regulations would effectively be rewarded by the application of less onerous standards by this Office on review of requests under article 12.
25. I am not satisfied that the Department has provided adequate reasons to the appellant or to this Office for refusal of the original request, apart from stating that the request was manifestly unreasonable as provided for in article 9(2)(a) of the AIE Regulations and would take “many hours” of work as its systems do not hold the information requested in a manner which would render it easily searchable. In addition, the Department has not explained why it would need to “manually review each licence issued during the period of time in question to see if a specific condition is stipulated in order to fully grant the records requested”. The appellant’s request is for “information on all commencement and completion notices…received …during July 2022 and to date” (emphasis added) and it is not clear why the Department could not instead conduct searches for notifications received by it in relation to forest licences or approvals for the relevant period. There is therefore no basis on which I can conclude that the request, which I note is limited to a time period of approximately one month, would result in a disproportionate cost or effort on the part of the Department, bearing in mind its duty to organise and disseminate environmental information as set out in articles 7 and 3(5) of the Directive and article 5 of the Regulations. I am therefore not satisfied that the request is manifestly unreasonable within the meaning of article 9(2)(a) such that the Department is entitled to refuse the appellant’s request on that basis.
26. Article 9(2)(b) provides that “a public authority may refuse to make environmental information available where the request remains formulated in too general a manner, taking into account article 7(8)”. Article 7(8) provides that “where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of receipt of the request, invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request”. As outlined above, the Department did correspond with the appellant to request that he narrow his request to a particular county. The appellant responded to indicate that he did not wish to narrow his request and submits that he considers the range of information sought to be reasonable. The Department also noted in submissions to this Office that it would be “happy to provide information on individual licences that the requester is concerned about”. However, it does not appear to have made such an offer directly to the appellant.
27. When considering whether the appellant’s request remains formulated in too general a manner, it must be borne in mind that Recital 16 of the AIE Directive provides that “the right to information means that disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. Article 10(4) of the Regulations provides that the grounds for refusal of a request must be interpreted on a restrictive basis having regard to the public interest served by disclosure. I therefore consider that the scheme of the AIE Regulations and the Directive make it clear that there is a presumption in favour of the release of environmental information and that it is for the public authority seeking to withhold information to establish that it is entitled to do so having regard to the grounds for refusal set out in the Regulations.
28. The Department has provided no reasoning in support of its position that the request is formulated too generally. I note in this regard that the request is limited to a time period of approximately one month and while it does seek information relating to all forestry schemes, it is limited to a specific category of information on those schemes (i.e. commencement and completion notifications received by the Department). I am therefore not satisfied that there is any basis on which I can conclude that the Department is entitled to rely on article 9(2)(b) of the AIE Regulations to refuse the request.
29. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I annul the Departments decision. As the information in question has yet to be compiled, I will remit the matter to the Department to process the request in accordance with the provisions of the AIE Regulations.
30. 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.
Emma Libreri, on behalf of the Commissioner for Environmental Information