Decision
Mr. X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145857-Y1Y0R1 and OCE-147943-Q3C1L7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-145857-Y1Y0R1 and OCE-147943-Q3C1L7
Published on
Whether the Department were justified in withholding some of the information contained in the records relevant to this request under article 8(a)(iii) of the AIE Regulations
23 September 2024
1. This decision concerns two appeals to this Office against the decisions of the Department on two requests submitted by the appellant under the AIE Regulations.
2. Both cases involve requests for access to unredacted versions of certain records, some of which are generally published by the Department in part-redacted form on the Forestry Licence Viewer (FLV), which is the Department’s mapping application for public display of certain forestry licence information.
3. The Forest Service of the Department has statutory responsibly for forestry in Ireland. As required under the European Habitats Directive Council Directive92/43/EEC and the Birds & Natural Habitats Regulations 2011 ( S.I. 477 of 2011 ), the Forest Service is required to undertake screening, and where necessary, an appropriate assessment, in relation to applications for consent, grant approval and licensing for various forestry activities, in order to evaluate projects within the context of any potential impact on a Natura site.
4. The Hen Harrier species (Circus cyaneus ) is listed on Annex 1 of the Birds Directive (Directive 2009/147/EC), and in Ireland is protected under The Wildlife Act 1976 & Amendment Act 2000 . Under Article 4 of the Birds Directive, six (6) Special Protection Areas (SPAs), covering a total land area of c.1,671km², have been classified for the conservation of the Hen Harrier in Ireland.
5. Specific procedures (see Appendix C of the Department’s Forestry Circular 02/2012 ) apply in relation to applications for consent / grant approval / licences involving certain forest management operations which have the potential to disturb Hen Harrier breeding activity within and surrounding SPAs designated for the species. These procedures, agreed with the National Parks and Wildlife Service (NPWS), focus on disturbance operations within so-called ‘Red Areas’ during the Hen Harrier breeding season. Red areas are 1.2 km radius areas centred on known Hen Harrier nesting areas. Depending on the location of their centre point, Red Areas may encapsulate land outside the boundary of the SPA. The remainder of the SPA is referred to as a ‘Green Area’.
6. The Department, on occasion, are required to notify forestry licence holders that project areas, previously approved on the basis of being within a Green Area are now considered to be within a Red Area and hence subject to restrictions. The NPWS supplies the Department with information on ‘High Likelihood of Nesting Areas’ (HLNAs) specifically for use as the Red Area underpinning the Disturbance Operations procedures. A disturbance operation as defined by the Forest Service is a forestry operation which has the potential, through excessive noise, vibration, mechanical movement, etc., to disturb the breeding activity of Hen Harriers.
7. Request 1 (Department Reference: AIE request 23 647; OCEI Reference: OCE-145857-Y1Y0R1)
i. On 29 December 2023, the appellant requested access to an “UNREDACTED copy of all AA documentation for CN89277”.
ii. This request relates to “AA documentation” in respect of a particular forestry licence number. Appropriate Assessment (AA) is an assessment of the potential adverse effects of a plan or project (in combination with other plans or projects) on Special Areas of Conservation and SPAs. These sites are protected by National and European Law. The requirement for AA is set out in Articles 6(3) and 6(4) of the Habitats Directive (92/43/EEC).
iii. The Department provided its original decision to the appellant on 23 January 2024, refusing access to the information on the basis of article 8(a)(iii) of the AIE Regulations, stating that the information is redacted “for the safety of the Hen Harrier population” and “[i]n essence an individual may decide to eradicate the Hen Harriers in the area to lessen the conditions on their licence”.
iv. The appellant requested an internal review on 23 January 2024, noting that “[t]he decision maker has provided no reasoning as to why the redacted information is protecting the Hen Harrier population”. The appellant also stated that “[he did] not want to know the precise location of a nest site and [he was] confident that the redacted information does not disclose this”.
v. The Department delivered its internal review decision on 25 January 2024 in which it affirmed its original decision, with the Internal Reviewer stating as follows:
“Hen Harriers are amber-listed Birds of Conservation Concern protected by the EU Birds Directive. Six SPAs were designated in Ireland in 2007 and these must be managed to maintain suitable habitat for Hen Harriers. The release of information regarding the location or potential location of these protected species could endanger their safety or their breeding habitat.
…
Furthermore, 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 the public interest would not be served by disclosing the information you request. The factors in favour of release of this information are the making available to the public, where practical and allowed under the law, in a transparent manner, information affecting the environment. It is the opinion of [the Department] that the interest in maintaining the protection of the environment to which that information relates outweighs the public interest in disclosure.”
vi. The appellant brought an appeal to this Office on 29 January 2024.
8. Request 2 (Department Reference: AIE request 24 107; OCEI Reference: OCE-147943-Q3C1L7)
i. On 14 June 2022, the appellant made a request to the Department under the AIE Regulations, seeking information on all licences where the licensee has been notified by the Forest Service of a new Red Area (generated by a newly recorded Hen Harrier nesting site) which overlaps the licenced area, to include the follow details:
a. Licence number
b. Date that the Forest Service was made aware of the new nesting location
c. Date and means that the licensee was notified by the Forest Service (email, letter, phone call, etc.)
d. Records of any post-notification inspections carried out by the Forest Service to ensure compliance with the notification
e. Details of any agreement between the FS and the licensee to permit disturbance works to continue
ii. This request was subject to a previous appeal by the appellant to this Office in OCE-127674-Q7S7W3 . In the decision on that particular appeal, dated 7 February 2024, the Commissioner found that the Department was not justified in its reliance on articles 8(a)(i), 8(a)(ii), 8(a)(iii), 9(2)(a) and 9(2)(b) of the AIE Regulations, and the Department was directed to undertake a fresh decision-making process. It may be noted that the Commissioner did not make a finding on the Department’s application of article 8(a)(iii) in that appeal; rather, he found that sufficient reasoning had not been provided to justify the application of any of the provisions of the AIE Regulations cited. The Department provided no evidence that would demonstrate a real risk or likelihood that disclosure of the information would cause an adverse effect but instead relied on general arguments or assertions to justify its decision.
iii. On 29 February 2024, the Department issued a fresh decision, identifying forty-seven (47) records within scope of the request. It granted access to three (3) records in full and part granted access to forty-four (44) records, citing the exemptions in articles 8(a)(i) and 8(a)(iii) of the AIE Regulations for certain redactions applied.
iv. The forty-four (44) records comprised notifications issued by the Forest Service on 13 July 2021 to the respective licence holder in relation to a change in Red Area or Green Area status. The records were provided in .pdf format and identified specific forestry licence numbers, being titled as follows – “Red to Green ([Specific Licence Number]) _Redacted.pdf” or “Red to Green ([Specific Licence Number]) _Redacted.pdf”.
v. On 29 February 2024, the appellant requested an internal review of this decision, submitting that the redactions applied under article 8(a)(iii) of the AIE Regulations were not justified and referencing a separate decision of the Commissioner in OCE-133378-G5P8J , issued on 19 February 2024, which had considered similar subject matter under article 8(a)(iii). In the circumstances of that appeal, certain sensitive information had already been made available to the appellant and as such, the Commissioner found that a link between disclosure of the actual withheld information and any adverse effect on the protection of environment concerned could not be demonstrated.
vi. The Department issued its internal review outcome on 26 March 2024, which affirmed the original decision.
vii. The appellant brought an appeal to this Office on 4 April 2024 regarding the Department’s refusal to make available information under 8(a)(iii) of the AIE Regulations.
9. I am directed by the Commissioner for Environmental Information to complete a review under article 12(5) of the Regulations. In doing so, I have had regard to all submissions made by the appellant and by 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 ’).
10. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
11. In relation to Request 1, the appellant made submissions to this Office on 29 January 2024.
12. The appellant highlighted the relevant redacted information, that being certain text on page 16 of the AA Screening Report and on page 3 of the AA Determination in respect of the licence number concerned. The appellant argued that the internal review decision did not address as to how the specific information redacted could result in an adverse impact such that the exception of article 8(a)(iii) applies, and furthermore that the Department’s weighing of the public interest is “generic and inadequate”.
13. The appellant submitted that he is not seeking any information which will adversely affect the protection of the environment and he argued that the actual information redacted appears to relate to the core foraging range of the species rather than nest location.
14. The appellant also submitted that “[the Department] is routinely redacting certain information from AA documentation”.
15. The Department made submissions to this Office on 28 March 2024.
16. The Department submitted that it had come to its attention that the appellant had already been provided with the unredacted documents in question as part of a response which had issued on 13 December 2023, in a separate AIE request. The Department submitted that this had occurred in error and that “the documents in question should have been redacted to protect the location of the Hen Harriers”. The Department also submitted that it had requested the appellant to delete the records released in error or otherwise withdraw this appeal on the basis that he was already in receipt of the information; however, the appellant declined to follow either course of action. The Department provided a copy of email correspondence between it and the appellant dated 27 March 2024 to this Office, wherein the appellant can be noted as stating the following: “If [the Department] accepts that the redactions were made in error then I will withdraw the case. If not, in the absence of sound explanation, I will pursue the appeal on a point of principle.”
17. The Department argued that the adverse effect under article 8(a)(iii) was stated explicitly in both its original decision and internal review decision letters, i.e. the release of the information increased the risk of persecution and habitat destruction of a protected species, the Hen Harrier.
18. The Department submitted that its policy is not to release any information that speaks to whether or not the Red Area or Green Area status applies; it explained:
“This entails the redacting of all of the text relating to the issue within the AA Documentation. This is in keeping with: (i) the need, under the current agreement that facilitates NPWS supplying the HLNA dataset to [the Department], for data confidentiality; and (ii) the legal responsibility [the Department] has [as] a public body not to release information sensitive from a conservation perspective.”
19. The Department submitted that the release of any information regarding the Red Area or Green Area status yields information that could be used to persecute the species; it further explained:
“For example, notification that the Red Area status applies tells the reader that the project area (or part therefore) lies no more than 1.2 km from the centre of a Red Area. This information can be coupled with other information (e.g. aerial imagery showing suitable and unsuitable breeding habitat) to glean an approximate area for the nesting location. An individual with ill-intent can then engage in various activities within that small area, to disturb breeding birds and to bring about breeding failure (e.g. letting their dog off the lead, setting of a crow-scare). The ease with which an individual can narrow down the area further increases rapidly if information on the Red Area status is given for two or more projects nearby.”
20. The Department submitted that the public interest in this case lies squarely with the protection of the Hen Harrier. It argued that any public benefit in release of the information “does not outweigh the increase in the already substantial risk of persecution faced by the Hen Harrier which would result from any disclosure which could contribute to identifying an approximate area for their nesting location”.
21. In relation to Request 2, the appellant made submissions to this Office on 4 April 2024.
22. The appellant submitted that the information redacted is virtually identical to that the Commissioner did not consider warranted redaction in OCE-133378-G5P8J and noted the following extract from paragraph 56 of that decision:
"… Having carefully reviewed the contents of the redacted information in each of the withheld AAD documents I am satisfied that this material does not contain any additional detail that could further narrow down the locations of nesting sites, other than that already identifiable from the Felling Licence Application Maps concerned."
23. The appellant submitted that the Department’s internal review decision asserts that all AIE requests must be judged on a case-by-case basis, however he argued that there is no indication that a case specific assessment has been made of the information withheld in each of the records concerned and that the Department has refused his request based on a blanket approach.
24. The appellant submitted that no evidence has been provided by the Department to show how the redacted information could allow for the exact location of nesting sites to be discovered or for any adverse effect on the protected species to occur. He argued that “the information refused is generic, it relates to Red / Green Zones not nest locations”.
25. The Department made submissions to this Office on 4 July 2024, wherein it outlined its general approach to the handling of specific and sensitive information regarding protected species’ habitats and breeding locations and how release of same could pose significant risks to the species' survival and broader environmental health. In line with its previous submissions concerning Request 1 above, the Department again stated that its “policy is not to release any information that speaks to whether or not the Red Area or Green Area status applies”.
26. On 18 July 2024, the investigator assigned to this case wrote to the Department seeking further information on its reliance on article 8(a)(iii) of the AIE Regulations, including seeking a copy of the data sharing agreement in place with the NPWS to support the application of the Hen Harrier Disturbance Operations Procedures. The investigator also informed the Department of her view that release of the pertinent licence numbers in response to Request 2 had already identified the licenced/project areas to which a Red Area or Green Area status applies. The investigator explained that having considered the actual redacted text at issue, in her view, it was not clear how that text provided any additional information to the appellant that would adversely affect the Hen Harrier species.
27. The investigator asked the Department to clarify how the specific redactions (as outlined in the investigator’s correspondence) could further narrow down the locations of Hen Harrier nesting sites, beyond the spatial extent of the identified licences, which are publicly available on the Department’s FLV application. The Department was also asked to explain the link it considered between the between disclosure of the actual redacted text concerned and any adverse effect on the protection of environment concerned such that article 8(a)(iii) could be said to apply.
28. A further submission was received by the Department on 28 August 2024, addressing the investigator’s queries.
29. In response to the investigator’s proffered view, that release of the pertinent licence numbers in response to the AIE request had already identified the licenced/project areas to which a Red Area or Green Area status applies, the Department conceded that it had overlooked the title of these records, i.e. “Red to Green” and “Green to Red”.
30. The Department submitted that the information in the title of the records should never have been issued and was an oversight on the Department’s behalf in this case. It argued that, “[h]ad the records been named differently, Record 1 and Record 2 for example, the redactions would have not provided the reader with the status and therefore provided a level of protection to the species”.
31. In relation to the specific redacted text within the records, the Department submitted that these redactions provide protection to the species. It submitted that a notification that the Red Area status applies tells the reader that the project area (or part therefore) lies no more than 1.2 km from the centre of a Red Area. The Department outlined that there are approximately 106 breeding pairs of Hen Harriers in Ireland and there are 9 counties where SPAs can be found, submitting that this a very small number of possible breeding areas. The Department argued that if the licence is given with redactions the reader is unsure whether it is a Green or Red Area and therefore cannot map the possible breeding sites easily. It submitted that without the redactions it can become very clear, especially in the cases where multiple licences in these small areas are sought, where the breeding sites are by collating the green or red status licences together coupled with other information (e.g. aerial imagery showing suitable and unsuitable breeding habitat), to glean an approximate area for the nesting location.
32. The Department noted that a recent relevant study – The 2022 National Survey of
breeding Hen Harrier in Ireland (Irish Wildlife Manuals 147), found that the species is in dire need of protection, highlighting section 4.6.2 of this report, “Pressures and threats for breeding Hen Harrier” which lists “shooting (i.e. persecution)” and “deliberate nest destruction” as two (out of nine) leading causes for the decline in the species. It submitted that “this is not hypothetical and is a reasonably foreseeable outcome for routinely providing this information”. The Department submitted that, “in this case, the information already provided to the [a]ppellant should never have been issued and is an error on the Department’s behalf”.
33. The Department also cited the following articles, which it suggested are relevant to the above point:
• Plight of Hen Harrier pits nature against climate policies – The Irish Times
34. The Department submitted that the FLV application is a tool for viewing licences and their documents and that Hen Harrier information is not provided on the FLV, including spatial layers. It submitted that if a licence contains Hen Harrier information, it is redacted in the same way as the records at issue here are, albeit named appropriately.
35. By way of example, the Department provided a screenshot from the FLV concerning one of the licences relevant to this request, and stating that there was no was no way to glean Hen Harrier information from this licence had the Department not released that information in error. The licence referred to displayed a status of “Decision under Appeal to FAC” and it may be noted that there were no licence documents available to view on the FLV in respect of this licence number.
36. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and affirm, annul or vary it. Where appropriate in the circumstances of the appeal, I will require the public authority to make available environmental information to the appellant.
37. My review in this case is concerned with whether the Department was justified in its refusal to release the unredacted versions of records identified by the Department in response to the appellant’s requests, under article 8(a)(iii) of the AIE Regulations.
38. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the record(s) and the extent to which I can describe certain matters in my analysis is limited.
39. The Department has refused access to information under article 8(a)(iii) of the AIE Regulations. This provision states:
“8. (a) A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information would adversely affect—…. (iii) the protection of the environment to which that information relates.”
40. This provision seeks to transpose Article 4(2)(h) of the AIE Directive, which in turn is based on Article 4(4)(h) of the Aarhus Convention. I note that the AIE Directive and the Aarhus Convention provide examples of the type of information intended to be protected, respectively referring to “the location of rare species” and “the breeding sites of rare species.”
41. Article 8(a)(iii) must be read alongside article 10 of the AIE Regulations. 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. 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.
42. The Minister’s Guidance, in considering “Material the disclosure of which would make it more likely that the environment to which such material related would be damaged” outlines:
“This exclusion is designed to cover information such as that pertaining to the location of endangered species where, for example, disclosure of detailed information would pose a risk to the continued integrity of rare specimens” (paragraph 11.4).
43. The Aarhus Guide notes that the equivalent provision in the Aarhus Convention allows public authorities “to protect certain sites, such as the breeding sites of rare species, from exploitation — even to the extent of keeping their location a secret. It exists primarily as a safeguard, allowing public authorities to take harm to the environment into consideration when making a decision whether or not to release information.”
44. I am satisfied that the purpose of article 8(a)(iii) of the AIE Regulations is to allow for the withholding of information where disclosure would be harmful to the protection of the environment. When relying on article 8(a)(iii) the public authority must identify the environment to which the information at issue relates and explain how disclosure of the information at issue would adversely affect the “protection” of that environment.
45. The common matter at issue in these appeals centres on the Department’s current practice of applying redactions relating to Hen Harrier information, to certain forestry licence documents.
46. The appellant draws attention to my decision inMr X and Coillte OCE-133378-G5P8J in support of his position that such redactions are unwarranted. The Department, on the other hand, understands that my decision in that instance was specific to the facts of that particular case and does not set a precedent regarding general release of this type of information.
47. The Department’s position is that information regarding whether or not a project area overlaps with a Green Area or a Red Area is sensitive from the perspective of species conservation. As such, it submits that it has a practice of redacting this type of information – in the form of text within AA documentation and among the conditions of a Tree Felling Licence, or elsewhere – before posting documents to the FLV or releasing them to third parties. The Department understands that such information could facilitate the identification of the centre point of a Red Area and lead to the subsequent persecution of breeding birds by individuals wishing to do so.
48. As outlined previously, the Disturbance Operation Procedures (the Procedures) are designed to protect breeding Hen Harrier from forest management related disturbances in the breeding Hen Harrier SPA network. The Procedures are enabled by the provision of information from the NPWS to the Department on ‘High Likelihood of Nesting Areas’ (HLNAs). This arrangement is outlined in a Data Sharing Agreement in place between the Department and the NPWS (the Agreement), a copy of which has been viewed by this Office. The Agreement expresses the highly confidential nature of the HLNA layer and stresses that it must not be shared in any format or by any means with any third party.
49. The Department uploads the HLNA layer to its internal iFORIS Map Viewer, a system which the Agreement states, is only available to Departmental staff and contractors, who are subject to requirements including the Official Secrets Act 1963, confidentiality and ethical conduct. The Agreement also states that Registered Foresters have access to a parallel system called ‘iNET’, which provides a platform to submit applications for licences and grant aid. iNET has a Map Viewer function that mirrors that on iFORIS in many respects, to enable Registered Foresters to scrutinise various environmental datasets. However, the Agreement states that current and historical HLNA layers (or ‘Red Areas’) are not available on iNET.
50. The Procedures require that where a forestry licence holder intends to undertake a disturbance operation(s) within the breeding season, they must contact the Forest Service or NPWS before preparing the application, to establish if the project area is within or partially within a Red Area. The agreement provides directions with regard to servicing this function, due to significant concerns surrounding any general release of what is considered to be “highly sensitive and confidential information”. These directions include that staff are only obliged to say ‘yes’ or ‘no’ in relation to a project area presented and that, “[i]t is critical that no further details are given or section of any Red Area revealed, as this could enable someone to recreate the Red Area, and subsequently, the centre point, thereby revealing the site of the nest that gave rise to the Red Area in the first place.”
51. The Department’s practice of redacting certain information before posting forestry licence documents to the FLV or releasing them to third parties does not appear to be explicitly covered in the Agreement. What is clear however, is that the nature of redactions applied in general by the Department are equal to the level of detail that is given to licence holders under the Procedures. Importantly though, in respect of individual licence holders, the information is only provided as it is an integral part of the Procedures in place for the protection of the species. It is my understanding that the Department’s position is that some level of protection can still be afforded to the species as a result of their approach to redacting identification of a project area within a Red or a Green Area, in respect of the wider public.
52. In respect of Request 1, it can be noted that the appellant advised the Department that he would pursue this appeal on “a point of principle”. In his submissions to this Office, he similarly stated that “[he] consider[ed] there to be a key principle at stake here”, proffering that:
“[The Department] must produce AA documentation in a way that does not disclose information that would fall to be refused under [a]rticle 8(a)(iii) such that unredacted documentation is made available to the public. Otherwise the public is disadvantaged in terms of its access to justice which is a key component of the principles that underpin the Regulations.”
53. In view of the above, the appellant is clearly seeking a determination from me as to whether the Department is justified in its current practice of applying redactions of this nature. However, as the Court of Appeal has made clear inRedmond v Commissioner for Environmental Information [2020 IECA 83 ][2020] IECA 83, proceedings before this Office are “inquisitorial rather than adversarial in character” and “the extent of the enquiry is determined by the Commissioner, not by the parties” (at paragraph 51).
54. In relation to the Request 2, the Department has acknowledged its error in already providing certain sensitive information in the titles of the records. More fundamentally, in my view, in having provided the appellant with individual licence numbers “…where the licensee has been notified by the Forest Service of a new Red Area…”, already has, by default, identified the spatial extent of the project areas concerned, and to a detailed scale. Having carefully reviewed the contents of the redacted information in each of the withheld records I am satisfied that this material does not contain any additional detail that could further narrow down the locations of nesting sites, other than that already identifiable from project areas maps concerned. The redacted information does not reveal the extent to which the license area overlaps with the Red Area, the part of the license area that may overlap with a Red Area, or the exact location of any Hen Harrier nesting activity.
55. I do consider that, had the licence numbers not been made available in Request 2, I would be required to examine whether the Department’s position in seeking to limit release of any information in relation to Hen Harriers, including the redacted text concerned, is justified. The appellant’s position on this matter is that the Department’s actions in redacting certain text is “overzealous”. However, I am conscious of the Department’s genuine concerns that data and information which identifies the location of relevant species and habitats could be misused, deliberately or accidentally, in a way that leads to damage. As such, I see merit in the Department’s argument that it is seeking to apply ever means available to it to restrict the amount of information made publicly available, from which could be gleaned the approximate location of Hen Harrier nesting areas, with the overarching aim of protecting the species in mind.
56. However, my findings in both of these appeals are limited to the specific facts and circumstances of each particular case. In relation to Request 1, it can be noted that the information at issue has in fact been released, albeit it error, under a separate AIE request and it is generally acknowledged that release of information under the AIE Regulations is considered to be release to the world at large. Request 2 involves facts akin to those considered in OCE-133378-G5P8J and I must similarly conclude that disclosure of the information requested in the current case would not adversely affect the protection of the environment to which it relates, in circumstances where the spatial extent of the project areas has already been identified by the Department in response to the appellant’s request.
57. In conclusion, I find that the exception in article 8(a)(iii) of the AIE Regulations has not been shown to apply in the circumstances of these cases. Therefore, the question of considering the public interest in refusing or granting the request(s) does not arise.
58. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the Department’s decision in each case and direct release of the information concerned to the appellant.
59. 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