Decision
Ms C and An Bord Pleanála
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143725-X8W0T6
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143725-X8W0T6
Published on
Whether ABP was justified in refusing access to environmental information on the basis of legal professional privilege under articles 8(a)(iv) and 9(1)(b) of the AIE Regulations
29 April 2024
1. On 13 September 2023, the appellant made an AIE request to ABP seeking records on compulsory purchase file CH03.307413.
2. On 10 October 2023, ABP issued a decision granting access to certain records, with some redactions. Additional records were identified as falling within the scope of the request; however, ABP refused to release the remaining records on the grounds that they contained legal advice relating to judicial review proceedings instituted by the appellant against ABP (2022 No. 983 JR). ABP found that further information was unavailable.
3. On 12 October 2023, the appellant sought an internal review of this decision. On 1 November 2023, ABP issued an internal review decision in which it affirmed the original decision.
4. The appellant appealed to this Office on 22 November 2023.
5. On 19 December 2023, additional records were released to the appellant. The appellant was also provided with a schedule in which other records were identified as being within the scope of the request but were not released as ABP was of the view that they were exempt under various provisions of the AIE Regulations.
6. On 2 April 2024, following engagement with this Office, a further record was released to the appellant.
7. 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 ABP. 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).
8. What follows does not comment or make findings on each and every argument advanced but all relevant points were considered.
9. In accordance with article 12(5) of the AIE Regulations, my role 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, I will require the public authority to make available environmental information to the appellant.
10. The scheme of the AIE Regulations, and of the AIE Directive, makes it clear that there is a presumption in favour of release of environmental information. Subject to that presumption, a public authority may refuse to release environmental information where an exemption under articles 8 or 9 applies and the interest in maintaining that exemption outweighs the public interest in disclosure.
11. Two issues arose in this appeal. The first was whether any further environmental information within the scope of the request was held by or for ABP. The second was whether ABP was justified in refusing access to the withheld information on the basis of legal professional privilege and the provisions of the AIE Regulations.
12. The second question arose in the schedule of records which ABP compiled after the appellant made her appeal, releasing certain further documents and withholding others. ABP relied on article 8(a)(iv) of the AIE Regulations in withholding documents on the legal file. During the review of this case, the investigator sought submissions from the parties as to whether article 9(1)(b) would apply in the context of the appeal. Accordingly, my review considers whether ABP would have been justified in refusing access to the information sought on the basis of that provision.
13. 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 certain records and the extent to which I can describe certain matters in my analysis is limited.
Chronology
14. On 20 September 2022, in decision ABP-307413-20, ABP approved without modifications an application from Clare County Council for a compulsory purchase order (CPO) to acquire the land and extinguish the public and private rights of way necessary to construct the N67/85 Inner Relief Road Ennistymon (Blake’s Corner).
15. On 14 November 2022, the appellant initiated judicial review proceedings against ABP, seeking, inter alia, an order quashing decision ABP-307413-20 (2022 No. 983 JR). Two judgments on preliminary matters have been given by the High Court ([2023] IEHC 233 delivered on 8 May 2023 in relation to an application for costs protection as against the planning authority and [2023] IEHC 464 delivered on 28 July 2023 in relation to an application for costs protection against the other parties).
16. On 13 September 2023, the appellant made an AIE Request to ABP seeking all records on case file ABP-307413-20. She also sought a list of all screening requests from Clare County Council to date from 2010 to date, in particular, all screening requests for Blake’s Corner / Blake’s and Linnanes in Ennistymon, County Clare. She clarified her request on 15 September 2023, stating that she was seeking a copy of the case file and made a further request for information which was never placed or which was removed from the public file.
17. On 10 October 2023, ABP issued a decision in response to the AIE request in which it provided the appellant access to 27 records, other than the case file, which was available through the public access service. The records provided 23 emails and 4 board meeting records.
18. However, the decision also identified other records on the legal file. ABP considered that it was unable to release the remaining records as they contained legal advice received by ABP relating to judicial review proceedings where litigation privilege applied. It relied on article 8(a)(iv) of the AIE Regulations in conjunction with s. 31 of the Freedom of Information Act 2014 (“the 2014 Act”).
19. It stated that it was unable to provide a list of NIS/EIAR screening from all developments in County Clare as ABP did not classify data in that way. However, it referred the appellant to its website for links for lists of cases relevant for NIS/EIAR in Clare.
20. On 12 October 2023, the appellant requested an internal review of this decision. She noted her surprise at absence of records connected to Clare County Council and the Mid West National Road Design Office. She also requested emails in particular to and from 5 named individuals and the address of ABP, and ABP’s direction to confirm the CPO.
21. On 1 November 2023, ABP provided its internal review decision. In this decision, ABP explained that the CPO process did not involve prior consultations with Clare County Council or the Road Design Office by ABP, and that therefore there were no records in that regard in the casefile. The appellant was referred to the public access scheme. ABP took the view that the search of emails was adequate and reasonable to locate records within the scope of the request. It considered that the request for records pertaining to the email addresses helpdesk@pleanala.ie and legalaffairs@pleanala.ie was a new request. It confirmed that there were two direction sheets on the CPO file, one confirming the CPO, and one giving a direction on a cost application. It attached the direction sheet confirming the CPO and confirmed that it would be uploaded to ABP’s website.
22. On 8 November 2023, the appellant appealed to this Office. In her reasons for appeal, the appellant stated that there were records from meetings that had not been provided to her, and that records which she did receive had been amended. She explained that in listing specific emails, she was not making a new request, but asking querying specific emails where she expected to find information related to her request.
23. On 19 December 2023, additional records were released to the appellant. However, records were identified by ABP which fell within the scope of the request, but which it was withholding on the basis of legal professional privilege.
Whether any further information relevant to the request is held by or on behalf of ABP
24. Article 7(5) of the AIE Regulations is the relevant provision where a public authority states that no further information relevant to the request is held by or on behalf of the public authority. This Office’s approach to dealing with cases where a public authority has refused a request under article 7(5) is to examine whether adequate steps were taken to identity 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 is applied.
25. In correspondence with this Office, the appellant stated that she expected the records she had received from ABP to have included a covering letter from the lodging party with a schedule of documents lodging the CPO with ABP. She also requested the full file to be examined by this Office.
26. The submissions of the ABP outlined the procedure when searching for documents relating to a case file:
• Referring to the ABP case management system and the public physical file, a list is to be compiled of all relevant staff and ABP members who worked on the file;
• Each relevant staff and ABP member is contacted and requested to forward any related records they hold which are not held on the public physical file;
• ABP members are required to carry out a search of their work areas, including their emails and hard copy;
• Records found are sent to the AIE team; and
• If no records are found, a nil response is sent to the AIE team
27. ABP provided a copy with its submissions of a memo issued to staff on 25 September 2023 notifying them of the AIE request. This memo asked the relevant staff to determine if they held any records that would correlate to the above matters but which were not already on the publicly available case file, and to respond by 5 October 2023.
28. The submissions also outlined its retention practice, in which it stated that its practice was to retain all substantive records pertinent to a case within a single hardcopy case file. Each case file is physically moved to each section as it proceeds through the application process. Each case is assigned to a specific person within each section to ensure a clear record is maintained of its movements. Due to the processes outlined to ensure all relevant documentation is attached to the file, ABP submits that it is unlikely that any records were placed on the wrong file.
29. In her appeal, the appellant referred to records being amended, without it being disclosed that they had been amended, specifically that there was an instance where a conflict of interest had been identified in an original record of the board meeting record on ABP-307413-20, which was later amended to no conflict.
30. In its submissions, ABP explain that it is not its practice to destroy any record, but that in creating a document for a case file, it was its practice to amend and replace draft records, resulting in a singular record for the file. This process explains how old records were no longer in the possession of ABP at the time of the AIE request.
31. In relation to the specific instance of a conflict of interest being identified, and later amended, ABP explained that this was an administrative error, and drew attention to emails which had been disclosed to the appellant as part of the records released to her, which indicate the “conflict of interest” had inadvertently been marked as “Yes” and that a memorandum was later signed by the board members present to show that there was No conflict of interest at the meeting.
32. The submissions refer to the annual number of cases handled by ABP being 2000 to 3000 cases a year. They submit that it is very unlikely that a record was placed on the wrong file, and that it would be unreasonable to search all other files to ensure that a record relevant to this request was misplaced in error.
33. In its internal review decision, ABP informed the appellant that the CPO process did not involve prior consultation with the local authority or the road design office, and that therefore there were no records in that regard on the case.
34. Having considered the submissions provided by ABP, I find that the searches carried out in relation to this request were reasonable, and that no further information within the scope of the request is held by or on behalf of ABP. This includes the covering letter which the appellant specified in her correspondence to this Office.
35. The appellant requested this Office to examine the full file. This Office has jurisdiction under article 12(6)(c) of the AIE Regulations to examine environmental information within the premises of a public authority. However, I did not consider this necessary in the circumstances of this appeal.
36. For the sake of clarity, I wish to comment on ABP’s suggestion that a new request for information was made by the appellant at internal review stage. In her internal review request, the appellant requested in particular all emails to and from five named individuals, before citing two emails of units within ABP, namely helpdesk@pleanala.ie and legalaffairs@pleanala.ie.
37. In its internal review decision, ABP took the view that this amounted to a new request, writing,
“I note that in your internal review request, you have added a request for additional records not previously included in your original request to the FOI/AIE Officer, records pertaining to the email addresses helpdesk@pleanala.ie and legalaffairs@pleanala.ie. I note that you have not been specific in the detail of the records you require from these email addresses as the subject of these email addresses covers a very wide spectrum of matters. As these records did not form part of your original request and consequently a decision to refuse or grant access to the records did not issue to you from the FOI/AIE Officer, I will not be reviewing this aspect of your internal review request. It is open to you to make an additional request for these records to the FOI/AIE Officer.”
38. In her appeal to this Office, the appellant clarified that she had not in fact been making a new AIE request in listing those email addresses, but was referring ABP to email accounts where she expected that records within the scope of her original request would be found.
39. In its submissions to this Office, ABP referred what it considers to be a new request, “specifically for emails to/from email addresses helpdesk@pleanala.ie and legalaffairs@pleanala.ie”.
40. However, this is a misunderstanding on the part of ABP. Rather than being a generalised request for information from these two unit-based email addresses, the reference in the internal review request to these email addresses is linked to the five named individuals.
41. Therefore, ABP was incorrect to argue that the appellant ought to have made a new AIE request. However, emails to and from the named individuals were included in the records released to the appellant. For the reasons outlined above, there is no reason to consider that there are further records to or from these named individuals within the scope of this request that were not disclosed to the appellant.
Whether article 9(1)(b) applies to the withheld information
42. ABP compiled a schedule of 90 records on the legal file. Of these, 37 were released to the appellant, with 53 records withheld. In the case of 17 of the records which were withheld, ABP relied on article 7(3) of the AIE Regulations, where the record was in the public domain or already in the possession of the requester. I am satisfied based on the content of these records that the exemption was validly applied in the case of these 17 records.
43. In the case of 26 records, ABP relied on legal privilege to withhold access. ABP relied on article 8(a)(iv) of the AIE Regulations in conjunction with s. 31 of the Freedom of Information Act 2014 (the 2014 Act). As investigations from this Office are inquisitorial rather than adversarial, it is appropriate to consider whether a public authority may have been justified in withholding a record, but had applied an exemption under a regulation which did not fit the circumstances of the case. In such circumstances, the duty of fair procedures requires the investigator to inform all relevant parties of any new approach.
44. The investigator wrote to both parties to inform them that following the judgment of Hyland J. in Commissioner for Environmental Information v. Coillte Teo. and People Over Wind [2023] IEHC 227, the Commissioner did not consider s. 31 of the 2014 Act to be a provision that could be relied on in this manner but that the Commissioner would consider the alternative of whether article 9(1)(b) of the AIE Regulations applied to the claim of legal professional privilege in respect of these records.
45. 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 would adversely affect the course of justice. Article 9(1)(b) seeks to implement article 4(2)(c) of the AIE Directive, which is in turn based on article 4(4)(c) of the Aarhus Convention.
46. ABP sought to withhold 26 records on the basis of legal privilege. Of these, 21 were correspondence between ABP and its legal representatives with legal advice and requests for legal advice in the proceedings between the appellant (the applicant in the High Court proceedings) and ABP. Three records related to the transfer of responsibility for the file from one firm to another firm. One was a briefing note prepared providing general legal advice to ABP on the implications of a judgment of the Supreme Court.
47. The final record initially withheld was the Legal Services Instructions Protocol completed by an employee of ABP. The investigator wrote to ABP indicating a preliminary view that article 9(1)(b) of the AIE Regulations did not appear to be engaged by this record. ABP reconsidered this record, and it was released to the appellant.
48. Legal professional privilege is a right of a person to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice. It is a common law right with a constitutional foundation, as a dimension of the protection of the administration of justice afforded by Article 34 of the Constitution of Ireland, and encompasses both litigation privilege and legal advice privilege. The existence of legal professional privilege is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice, such that it is “a fundamental condition on which the administration of justice as a whole rests” (see Martin v. Legal Aid Board [2007] IEHC 76 and Miley v. Flood [2001] IEHC 9). In light of this, I accept that the disclosure of information which would breach legal professional privilege would, as a result, adversely affect the course of justice, within the meaning of article 9(1)(b) of the AIE Regulations.
49. The questions arising in assessing whether litigation privilege applies were outlined in Artisan Glass Studio Limited v. Liffey Trust Limited [2018] IEHC 278 :
(a) Whether litigation was reasonably apprehended at the time the documents in question were brought into being;
(b) Whether the documents in question were brought into being for the purpose of that litigation;
(c) If the documents were created for more than one purpose, the documents will be protected by litigation privilege in the event that the litigation was the dominant purpose;
(d) The party claiming privilege has the onus of proving that the documents are protected by privilege.
50. Having assessed the 21 records containing correspondence between ABP and its solicitor relating to the proceedings in 2022 No. 983 JR, I am satisfied that litigation privilege applies to these records.
51. In relation to the three records relating to the transfer of responsibility of the file from one legal firm to another, I am also satisfied that litigation privilege applies to these records.
52. Litigation privilege applies with particular relevance where the appellant in the appeal to this Office is the applicant in judicial proceedings against ABP.
53. Legal advice privilege covers a communication between “a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice whether at the instigation of the client or the lawyer” (Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 I.R. 469). In McMahon v. Irish Aviation Authority [2016] IEHC 221 , the circumstances required for legal advice privilege to apply are outlined:
(a) there must be a communication between a client and a lawyer (including solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General);
(b) the communication must have been made in confidence;
(c) the communication must have been made during the course of a professional legal relationship; and
(d) the communication must have been made for the purposes of the giving or receiving of legal advice.
54. Having assessed the briefing note providing general legal advice to ABP on the implications of a judgment of the Supreme Court, I take the view that it is not a document of which the dominant purpose was the preparation for pending litigation, but I am satisfied that legal advice privilege applies. In doing so, I stress the need for ABP, as with any public authority, to be specific in its application of exemptions and the law on privilege, carefully distinguishing records to which different categories of privilege apply.
55. The submissions of ABP contended that the public interest served by refusal outweighed the public interest served by release as the release of the records would compromise confidential communication, the dominant purpose of which was the preparation for pending litigation. In doing so, it invoked the terms of article 10(3) of the Regulations. Under article 10(4), the grounds for refusal must be interpreted on a restrictive basis. I will now proceed to consider whether this applies to the records withheld by ABP.
56. There is a general public interest within the framework of the AIE Regulations in the disclosure of environmental information. However, given the constitutional protection accorded to legal professional privilege, in the absence of exceptional circumstances, it would not be appropriate to direct release. This consideration applies most acutely in the case of the records containing the correspondence between ABP and its solicitors in the matter where there are judicial proceedings between it and the appellant.
57. In these instances, it also applies in the case of the records relating to the transfer of the file between firms, as the reasoning behind such a transfer contains implicit references to litigation and past advices given in prior litigation.
58. The briefing note on a recent Supreme Court decision is part of the ongoing legal professional relationship with ABP and assists in its approach to conducting legally sound decision-making. The public interest in preserving this process outweighs the public interest in disclosure.
59. Having considered the public interest served by disclosure having considered the interest in directing release of the specific legal advice at issue in this particular case, the public interest in disclosure is not sufficient to outweigh the fundamental importance of the interest of preserving ABP’s right to legal professional privilege in relation to the advice that it received from its solicitors.
60. Accordingly, I affirm the decision of ABP to refuse access to the information sought, but I vary the basis for doing so and find that article 9(1)(b) applies to the withheld information and that the interest in refusal outweighs the public interest in disclosure.
61. Having carried out a review under article 12(5) of the AIE Regulations, I affirm ABP’s internal decision to withhold certain information but vary the basis of that decision. Certain records within the scope of this request have been released by ABP to the appellant since the date of the appeal to this Office. ABP may refuse access to the remaining records within the scope of this request on the basis of article 9(1)(b). The interest in refusal outweighs the public interest in disclosure. ABP also misunderstood the internal review request to mean that the appellant was making a fresh request, where she was in fact seeking clarification or specificity following the original decision.
62. 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