Decision
Right To Know CLG and Kildare County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-138766-B3N5M9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-138766-B3N5M9
Published on
Whether the Council is justified in refusing certain information requested by the appellant on the basis of article 9(1)(b) of the AIE Regulations
27 November 2025
1. On 26 April 2023, the appellant wrote to Kildare County Council (the Council) to request “any licencing monitoring/inspection or enforcement records in relation to a quarry operation at Rinaghan, Kildare”. The appellant sought records from 2020 to 2023.
2. On 5 May 2023, the Council refused the request and stated;
“The Decision Maker has decided to Refuse access to the documents in the Unauthorised Development file, requested under Article 3(2) of the European Communities (Access to Information on the Environment) Regulations 2007 as amended, under Section 9 (1) (b). The unauthorised development file UD 5010 contains the Enforcement Officer Reports required for the Council's unauthorised development investigations and will be required for legal proceedings and therefore not available for release ”.
3. On 9 May 2023, the appellant submitted an internal review request and noted no schedule of records of the refused material had been provided.
4. On 25 May 2023, the appellant appealed to this Office.
5. On 21 June 2023, the Council issued its internal review decision. In doing so, it affirmed its original decision and stated;
“On a typical Enforcement file there would be correspondence with any relevant service departments as well as ongoing correspondence with the objector and the alleged offender .
There would also be Enforcement Officer inspection reports outlining detail of their findings following various inspections and the legalities of the case which would be subject to court proceedings .
There would also be detail of interactions between the alleged offender and the Enforcement Officer which formulate legal proceedings. Release of these documents could be considered detrimental to the legal proceedings initiated by the Planning Authority. What are considered public documents in an enforcement case would be copy of Warning letter and Enforcement Notice. All other information on a legal proceedings case is confidential and sub judice ”.
6. On 22 June 2023, the Council issued further information to the appellant and stated;
“On a typical Enforcement file there would be correspondence with any relevant service departments as well as ongoing correspondence with the objector and the alleged offender .
There would also be Enforcement Officer inspection reports outlining detail of their findings following various inspections and the legalities of the case which would be subject to court proceedings .
There would also be detail of interactions between the alleged offender and the Enforcement Officer which formulate legal proceedings. Release of these documents could be considered detrimental to the legal proceedings initiated by the Planning Authority ”.
7. On 15 August 2023, the Council provided this Office with a schedule of records and a copy of the enforcement file. The Council advised having reviewed the initial decision there were some documents that they were now able to provide to the appellant. The Council also stated;
“I wish to further advise that this Unauthorised Development (UD) file has been ongoing since 2012 and is a complex case whereby the developer has undertaken unauthorised works from time to time. While we have initiated section 160 legal proceedings, we are now in a monitoring phase and it is essential that the documents that we have refused on the file are not released. Under Sections 151 - 159 of the Planning and Development Act, 2000 (as amended), court proceedings may be initiated and any person who is guilty of an offence could be liable to a fine not exceeding €10,000,000 and/or imprisonment. All aspects of the UD file are therefore extremely sensitive and are likely to come under great scrutiny and we cannot prejudice any potential legal and court proceedings ”.
8. On 15 August 2023, the Council forwarded a letter to the appellant with a schedule of documents. The Council stated;
“We have reviewed our original decision made on the 5th of May 2023 and consider that the decision should have been a Part Grant decision. I enclose for your attention a schedule of records on UD file 5010 that advises records you can have access to and attach for your information ,
• Directors Order dated 08/10/2012
• Enforcement Notice redacted dated 08/10/2012
• Enforcement Notice redacted dated 08/10/2012
• Withdrawal of enforcement Notice 09/05/2013
• Section 160 Directors Order 24th July 2017
• Warning letter redacted 27th June 2022
Records that you have been refused access to are also listed on the schedule and the reasons for their refusal ”.
The schedule of records listed 79 records of which items 2,3, 8,19, and 62, were provided to the appellant, in redacted form, and access to the rest was refused under article 9(1)(b) of the AIE Regulations.
9. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Kildare County Council. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
10. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
11. In accordance with article 12(5) of the AIE Regulations, my role is to review the Council’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Council to make available environmental information to the appellant.
12. The appellant in this case requested records for the period 2020 to 2023. The Council identified 79 records which they deemed relevant to the request. Of the 79 records identified by the Council, 49 of those fall outside the scope of the request as they relate to a time period from 2012 to 2019. The original request that is the subject of this appeal specifically sought access to records from 2020 to 2023. The scope of this review therefore concerns whether the Council was justified, under article 9(1)(b) of the AIE Regulations in refusing access to the remaining 29 records, namely records 50 to 79 on the schedule provided by the Council.
13. The appellant has confirmed that it is not seeking access to personal information, and therefore any personal information is not within the scope of this request.
14. On 4 April 2025, this Office contacted the Council to seek an update on the status of the Unauthorised Development (UD) file and to confirm if Council’s position remained the same in relation to the documents that were not provided to the appellant.
15. On 17 April 2025, the Council provided a response and stated;
“I refer to our previous letter to your office where we advised that this Quarry UD file had been ongoing since 2012 and is a complex case whereby the developer has undertaken unauthorised works from time to time. While we have initiated section 160 legal proceedings, we are now in a monitoring phase and it is essential that the documents that we have refused on the file are not released ”.
16. On 23 April 2025, the Council were requested to provide a further submission and outline full and succinct reasoning as to why the information at issue should be refused under the terms of the AIE Regulations. The Council were advised assertions, or blanket claims are generally not sufficient; it must be shown how or why the particular information meets the criteria of the relevant exceptions under the AIE Regulations.
17. On 15 May 2025, the Council provided a submission to this Office which they considered confidential. The Council outlined they had considered the public interest and the environmental impact but held they view that the records associated with the unauthorised development needed to remain confidential.
18. Article 9(1)(b) 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 the course of justice (including criminal inquiries and disciplinary inquiries).
19. This provision seeks to transpose Article 4(2)(c) of the AIE Directive, which in turn is based on Article 4(4)(c) of the Aarhus Convention. Article 4(2)(c) of the AIE Directive provides that Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature.
20. Article 9(1)(b) must be read alongside article 10 of the AIE Regulations. 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 articles 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.
21. The wording of article 9(1)(b) of the AIE Regulations makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the public authority must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the course of justice (see C-619/19 Land Baden-Württemberg v DR). The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical.
22. The requirements outlined above mean that a public authority must examine the information
in question before it can invoke grounds for refusal of that information. Where grounds for
refusal are identified, the information should be examined to determine whether certain
information may be released without adversely affecting the course of justice. It is not
appropriate to apply the exception in a blanket fashion to records identified as relevant to a request.
23. The Council’s explanation as to why the information within the scope of the request should be refused under article 9(1)(b) of the AIE Regulations and section 32 of the Freedom of Information Act was as follows:
“Under Sections 151 - 159 of the Planning and Development Act, 2000 (as amended), court proceedings may be initiated and any person who is guilty of an offence could be liable to a fine not exceeding €10,000,000 and/or imprisonment. All aspects of the file are therefore extremely sensitive and are likely to come under great scrutiny and we cannot prejudice any potential legal and court proceedings. There have been a number of complaints and interest in this case. It is the Council's intention to serve the public interest in the best manner possible by keeping their records completely confidential ”.
24. I am not satisfied that the Council has explained how the release of the records at issue could adversely affect the “ongoing investigation ” and in turn, “the course of justice .” The Council have not addressed the specifics of the information requested or explained in any meaningful way how the release of the records would adversely affect the course of justice “with regards Section 152- 159 of the Planning and Development Act 2000, as amended .”
25. I must remind the Council that the fact that information may relate to ongoing legal or statutory proceedings does not, in and of itself, establish that its disclosure would adversely affect the course of justice; otherwise the AIE Regulations would provide for a class-based exception for such information, which they do not.
26. I find that there are two main issues with the manner in which the Council has sought to rely on the exception provided for in article 9(1)(b). Firstly, the Council has made no effort to set out how disclosure may adversely impact the course of justice. Merely stating a connection to ongoing proceedings, or the possibility of proceedings, is not sufficient to engage the provisions of article 9(1)(b) and does not automatically render records exempt from release. Secondly, the Council has sought to apply the exception in a blanket manner. It has failed to adequately consider the question of partial disclosure in accordance with article 10(5) or the requirements, set out in articles 10(3) and 10(4), to consider the individual circumstances of the request, to interpret grounds for refusal restrictively and to weigh the public interest served by disclosure against the interest served by refusal.
27. The Council have failed to demonstrate they have applied article 10(3) which requires weighing the public interest in disclosure against that in refusal, article 10(4) which sets out a restrictive interpretation of refusal grounds, and article 10(5) which places an obligation on a public authority to consider the separability of information for partial release. Given the nature of quarry operations and potential environmental impacts there is significant public interest in transparency and oversight. The failure to consider partial release or redact sensitive material falls short of the obligations set out in the AIE Regulations.
28. The Council have classified the records that fall within the scope of the request as follows: Records 51, 58,67,68, 75,76, 78,79 are internal reports which could be provided by the Council without redactions while records 55, 61,66, 70,73, 74 and, 77 could be provided with redactions as these records contain personal details of the complainant.
29. 13 of the records identified by the Council relate to correspondence to, from, and on behalf of objectors. Records 57,59,60, and 64 could be released in full and as some of these relate to representations from elected officials the public interest is served by their release. The remaining records 50, 52, 53, 54, 56, 63, 69, 71, and 72 contain personal details of objectors but could be provided in redacted form. Record 62 had been provided to the appellant and record 65 relates to notes of a call with a developer and could be released with personal information redacted.
30. Having reviewed the information sought, I am not satisfied that the Council has demonstrated that the release of the records would cause a reasonably foreseeable risk on the ability to conduct enquiries regarding unauthorised developments. The information contained in the withheld records is primarily investigative/administrative. The refused information is of such a factual nature that I cannot see how it could give any advantage to person accused of or who has carried out unauthorised development, or otherwise adversely affect the course of justice. Accordingly, I find that article 9(1)(b) does not apply to the information sought.
31. The Council have stated this investigation is “still in a monitoring phase and this case is still with our Solicitors ”. The Council issued a decision to impose conditions on the site on 25 April 2007, which had a twenty-year consent, and imposed conditions concerned with the restoration of the site. While the Council may be monitoring the site, and future legal proceedings may be taken, the Council has not established that the release of the information sought would adversely affect the course of justice.
32. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision. I find that the Council was not justified in refusing the appellant’s request for records on the basis of articles 9(1)(b) of the AIE Regulations. I hereby, direct the Council to release the requested environmental information to the appellant.
33. 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