Decision
Mr F and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135805-Z6Q3K5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-135805-Z6Q3K5
Published on
Whether the Department was entitled to refuse the appellant’s request on the basis of article 9(2)(c) of the AIE Regulations
19 April 2024
1. The appeal relates to a request for information submitted to the Department on 1 November 2022 as follows:
All information on the iterative process to prepare the draft Irish Forest Strategy Implementation Plan (DAFM) [Department of Agriculture, Food and the Marine], the SEA Environmental Report and the Appropriate Assessment (Arup) including drafts, discussions and communications. Also to include the full responses from statutory consultees on the content of the SEA Scoping Report.
2. On 28 November 2022, the Department issued a letter to the appellant stating that it had been unable to obtain the requested records, would be unable to comply with the request within the one-month timeframe set out in the AIE Regulations and, in accordance with article 7(2)(b) of the Regulations, was extending the time within which to make a decision by one month.
3. The appellant responded on 1 December 2022, stating that the inability of the Department to obtain the records was not a valid basis for applying an extension and requested an internal review on the basis of a deemed refusal.
4. This was followed by correspondence from the Department dated 2 December 2022, declining the internal review request as the original decision had not formally issued to the requester. The correspondence indicated, in addition, that the requester had been offered assistance from the Department in the refinement of his request, which had been declined, leading to the request requiring a longer response time due to the complexity of the information requested.
5. On the same day, the appellant responded to express his view that the extension applied was inconsistent with the AIE Regulations, that an incorrectly applied extension compromises his right to receive the requested information as soon as is possible, and that the Department had not provided a reasoned justification for its application of an extension in this case.
6. The Department responded on 7 December 2022 to express its disagreement, stating that it had notified the appellant of the extended timeframe within which a decision would issue and declining his request for an internal review until the issue of a decision.
7. On 3 January 2023, no decision having issued from the Department, the appellant wrote to request an explanation for this and to seek an internal review on the basis of a deemed refusal.
8. A decision, referred to as an internal review decision, issued to the appellant on 25 January 2023, in which the Department stated that it varied the decision made by the initial decision-maker, although no original decision had been made. The decision refused access to the requested information under articles (9(2)(c) and 9(2)(d).
9. In submissions lodged with my Office during the course of this review, the Department clarified that it is refusing access to information sought solely on the basis of article 9(2)(c) of the AIE Regulations. For the sake of completeness, it is appropriate to note that in those same submissions, the Department apologised for the fact that no original decision had issued to the appellant and stated that this arose from the increased workload of the team at the time.
10. The appellant brought this appeal to this Office on 23 February 2023.
11. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal, which I have now completed under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
• 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);
• the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• the decision of the High Court in M50 Skip Hire & Recycling Limited v Commissioner for Environmental Information [2020] IEHC 430 (M50);
• the decision of the Court of Justice of the European Union (CJEU) in C-619/19 Land Baden-Württenberg v DR.
12. What follows does not make findings on each and every argument advanced but all relevant points have been considered.
13. This appeal is concerned with whether the Department was justified in relying on article 9(2)(c) of the AIE Regulations to refuse access to the information sought by the appellant.
14. The Department in this case failed to issue a first instance decision to the requester. This is not acceptable, and the Department has apologised for this in its submissions. The decision that issued on 25 January 2022 was referred to as an internal review decision, and stated that it varied the decision of the initial decision maker. This was clearly incorrect in circumstances where no initial decision had issued, and I request the Department to ensure that this does not occur again in relation to future AIE requests.
15. When issuing its decision, the Department failed to identify any of the records it was refusing to release to the requester by way of a schedule of records. While there is no obligation contained in the regulations to provide such a schedule, it is best practise to do so, and the Department is encouraged to provide requestors with a schedule of records when processing AIE requests.
In the course of this review, the Department has provided my Office with 63 records it considers relevant to the appellant’s request. However, no schedule was provided indicating which of the records was refused under article 9(2)(c) and which under 9(2)(d), the grounds for refusal cited in the decision. Subsequently, the Department confirmed to my Office that it was solely relying on article 9(2)(c) in refusing the release of the information sought.
16. A review of the 63 records revealed that two were responses to the statutory consultation process, received after the date of the appellant’s request which is the cut-off date at which environmental information requested by an applicant is deemed to be “held” by a public authority in accordance with article 3(1) of the AIE Regulations and can be considered for release. This being the case, any responses received after the date of the request in this case are out of scope and need not be considered by the Department.
17. I note from correspondence to the appellant dated 2 December 2022 that the Department offered assistance to him in the refinement of his request but that the offer was declined. I note also that the appellant sought the information requested in order to assist him in lodging a submission during the course of the statutory consultation process. However, as the date of the request was 1 November 2022, the Department had one month from that date to respond to the request, that is, to 1 December 2022, which is actually two days after the expiry of the consultation on 29 November 2022. Given the timeframe involved, even if the Department had complied with its obligation to issue an original decision by 1 December 2022, the time left for the appellant to review any information released to him and to lodge a submission on the back of it would have been short if not incredibly so or, in the worst of cases, non-existent if his request had been responded to on 30 November or 1 December 2022, after the last date for submissions. This prompts me to remind requesters and public authorities alike, as stated in this Office’s Annual Review 2022, of the benefits that accrue from enhanced cooperation between parties.
18. I make note also of the extension to respond to the request that the Department applied to itself. From an email sent to the appellant on 28 November 2022, the Department alludes to an “extension letter” attached to it in relation to his request. This Office has not had sight of that letter. Without knowledge of its contents, I confine my remarks to say that article 7(2)(b) of the AIE Regulations confers on a public authority the ability to extend by one month the period within which it is to make a decision on a request where the public authority “is unable, because of the volume or complexity of the environmental information requested” to make a decision within one month of the date of receipt of the request. Needless to say, this is not a catch-all provision to allow public authorities to extend respond times for any reason, but rather only for the reasons given in the article. I make no determination on the use of the extension by the Department in this case without knowledge of the contents of the letter issued to the requester but rather take this opportunity to remind public authorities in general of their obligation to abide by the provisions of the AIE Regulations.
19. Finally, as the Department relied on article 9(2)(c) of the AIE Regulations in order to withhold information because it concerns material in the course of completion, it was bound to inform the appellant, by virtue of article 10(6), of the estimated time needed for completion. In response to a question on this matter from the investigator assigned to the case, the Department has stated that the Forestry Programme, of which the FSIP, SEA and AA are all an integral part, is subject to a State Aid notification process with the European Commission, and until this deliberative process concludes it was not possible to advise as to when the information withheld would be available to be provided to the appellant. Even the provision to the appellant of this rudimentary response would have gone some way to satisfying the obligation imposed by article 10(6) as it would at least have given an indication of the length of time it might take before the information would be available. Public authorities are accordingly encouraged to be cognisant of all obligations imposed on them by the AIE Regulations. As it happens, during the course of this review, it appears that the element of the Forestry Programme that was dependent on State Aid approval by the European Commission was so approved on 2 August 2023, a fact that allowed the Department to convey this information to the appellant and to release any pertinent information to him. The notification of this event can be seen on the website of the Commission's Representation in Ireland.
20. Article 9(2)(c) of the AIE Regulations provides that a public authority “may refuse to make environmental information available where the request…concerns material in the course of completion, or unfinished documents or data”. This provision transposes Article 4(1)(d) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention. Article 10, however, provides for certain limitations on the ability of a public authority to refuse to make environmental information available as follows:
“(3) The public authority shall consider each request on an individual basis and weigh the public interest served by the disclosure against the interest served by refusal.
(4) The grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
(5) Nothing in article…9 shall authorise a public authority not to make available environmental information which, although held with information to which article…9 relates, may be separated from such information.
(6) Where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.”
21. The first question to be considered, therefore, is whether the exception contained in article 9(2)(c) can be relied on in the circumstances. Article 10(4) makes it clear that a restrictive approach to that question is necessary, namely that grounds for refusal of a request must be interpreted on a restrictive basis, having regard to the public interest served by disclosure. The decision of the CJEU in Land Baden-Württenberg also makes it clear that “…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” and that “the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical” (paragraph 69). The CJEU also noted that the purpose of the exception concerning material in the course of completion or unfinished documents is “to meet the need of public authorities to have protected space in order to engage in reflection and to pursue internal discussions” (paragraph 69).
22. It is to be borne in mind that Recital 16 to the AIE Directive provides that “the right to information means that the 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”.
23. The 63 records provided to this Office by the Department can be divided into the following categories:
a. Single emails or emails contained within email chains between Department officials and an advisor company (Arup) engaged to assist the Department in the preparation of the Forest Strategy Implementation Plan (FSIP) including the Strategic Environmental Assessment (SEA) and Appropriate Assessment (AA) reports to incorporate into the FSIP.
b. Prima facie drafts of these or constituent parts of them at various stages of completion. Many of these are attachments to the above emails.
c. Two documents were responses to the statutory consultation process received by the Department on or before 1 November 2022.
d. Minutes of a progress meeting between Department officials and Arup personnel on the FSIP held on 5 August 2022.
e. Department slides in a PowerPoint presentation given internally to Department officials on 8 July 2022 and subsequently shared with Arup personnel.
24. I will deal with each of the above categories individually below.
Are the emails exempt from release under article 9(2)(c)?
25. As noted above, the emails consist of correspondence between Department officials and an advisor company engaged to assist the Department in the preparation of the Forest Strategy Implementation Plan (FSIP) including the Strategic Environmental Assessment (SEA) and Appropriate Assessment (AA) reports to incorporate into the FSIP.
26. I consider that emails are, by their nature, complete documents once sent to their recipients, as they are no longer in draft, incomplete or unfinished form and cannot, consequently, constitute material in the course of completion. While the emails relate to the preparation of the Forest Strategy Implementation Plan, it is the information requested which must be examined when assessing whether article 9(2)(c) applies, rather than any decision-making process to which the information relates.
27. The emails contain information relating to individuals working for the third party company advising the Department. I consider that these individuals are working in a professional capacity, engaged by the Department, and that no adverse effect can arise from the release of this information. Further, the Department has not suggested that any other exemption under the AIE Regulations might apply to this information.
28. I note the inclusion in some of the emails of an extract from a third party report commissioned by the Department. The investigator in this case has confirmed that the report is publicly available for viewing on the Department’s website, by reason of which I do not consider any consultation with either the Department or the third party in relation to the release of the extract in the emails to be necessary.
29. For all the reasons given above, I direct release of the email correspondence provided to this Office.
Are the responses to the statutory consultation process, the minutes and the PowerPoint slides exempt from release under article 9(2)(c)?
Responses to the statutory consultation process
30. As mentioned, this provision gives public authorities the discretion to refuse to make environmental information available where a request “concerns material in the course of completion, or unfinished documents or data”. The purpose of the exemption is to afford public authorities “… protected space in order to engage in reflection and to pursue internal discussions” (Land Baden-Württenberg, paragraph 69).
31. Whilst no definition of “material in the course of completion, or unfinished documents” exists, either in the AIE Regulations or the AIE Directive or, indeed in the Aarhus Convention, it is not unreasonable to consider it to refer to the process of preparation of a document itself, rather than to any consultation process related to the document. Consequently, I do not consider it to be of relevance that the statutory consultation process was ongoing at the time of the appellant’s request, as article 9(2)(c) requires an examination of the documents themselves, not of any related consultation process.
32. The appellant argues that, by their nature, the documents constituting responses to the statutory consultation cannot be said to be material in the course of completion or unfinished as they are completed documents that have been submitted to the Department as part of a statutory consultation process. I agree with this submission. These documents have been submitted complete and finished for the Department’s consideration in the context of that process. Accordingly, as they constitute material that is complete and finished, they cannot be considered to fall under the exemption in article 9(2)(c) and the Department’s reliance on this provision in respect of them fails. This means that no consideration of article 10(3) in respect of them is necessary as the exempting article cannot be utilised to prevent their release.
The Minutes
33. The minutes of the meeting of 8 July 2022 between Department officials and Arup personnel, record no. 14, appear to have been prepared by the latter and are printed on Arup branded stationery. As they are a record of an event that has already taken place and incorporate, as they do, subsequent requested changes from the Department, in my view they can be considered as nothing other than a complete and finished document and not material in the course of completion. As noted above, when considering the application of article 9(2)(c), it is the information requested that must be considered. That being the case, they cannot fall to be considered exempt from release by virtue of article 9(2)(c).
The PowerPoint slides
34. The PowerPoint slides, record no. 5, created and presented by a Department official, formed part of a presentation given internally to other Department officials and were shared subsequently with Arup personnel, the Department’s advisors, as is evident from one of the emails provided to this Office. It is my view that, as they have been used in the presentation for which they were created, they cannot be considered to be other than complete and finished. Therefore, they cannot be considered to fall under article 9(2)(c) such as to prevent their release. As stated, the provisions of this article cannot be used to withhold information purely on the basis that it forms part of a process that is ongoing or as yet unfinished, as asserted by the Department in this case. A document, and only a document, can be considered to be material in the course of completion, not a process of which it forms part. Though a process may be ongoing, any document which is produced by or for it, or as a result of it, if it is complete and finished and is no longer subject to change or amendment, cannot be considered to be information that falls under the exemption provided by this article. For that reason, as the slides are complete and finished, they do not fall to be considered exempt under this provision and are subject to release. Again, for this reason, article 10 of the Regulations has no applicability to this document.
Are the draft reports and constituent elements of them in draft form (the remaining documents), exempt from release under article 9(2)(c)?
35. At the outset, it is important to note that this article allows for the withholding of information under two categories, namely “material in the course of completion” and “unfinished documents or data”. It has been established that the first of these categories applies only to documents that are being actively worked upon at the date of a request. The explanation of this term in the Aarhus Guide notes that “the words ‘in the course of completion’ suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the course of completion they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. ‘In the course of completion’ suggests that the document will have more work done on it within some reasonable timeframe”. I acknowledge that the Aarhus Guide is an aid to interpretation rather than a binding document. However, its interpretation accords with the wording of article 4(1)(d) of the AIE Directive and article 9(2)(c) of the AIE Regulations, both of which, importantly, extend the exemption in the Aarhus Convention to information that constitutes “unfinished documents or data” at the date of a request.
36. As the date of publication of the FSIP, the AA and the SEA for the purpose of the statutory consultation is 18 October 2022, prior to the appellant’s request for information, this means, first, that any of the documents included in the information provided to this Office that can be considered to be in a draft state must, necessarily, have ceased to have the condition of documents in the course of completion, as they were no longer being actively worked upon by the Department, having transitioned into a finished state fit for publication on 18 October 2022 and, second, that they are within scope of the appellant’s request, as they predate it. This being the case, the documents can only be considered to fall under the protection of article 9(2)(c) if they can be considered to be covered by the “unfinished documents” element of the article.
37. In its internal review decision, the Department refused release of the information requested on the basis that it comprises material in the course of completion, or unfinished documents. It has been established that none can be considered to be in the course of completion, so that argument fails. It remains to be seen if any can be considered unfinished. The Department provided no schedule of records to the appellant nor identified in any other way the information that was being withheld. As stated, this is unacceptable.
38. The Department’s approach is blanket in nature, covering all 63 individual documents that it has identified as relevant to the appellant’s request. However, it fails to distinguish between documents that may truly be said to be unfinished, from those which cannot be so considered, as is set out above in the case of the responses to the statutory consultation, the minutes and the slides.
39. The appellant makes the point in submissions made to this Office that, given the nature of his request, it is most unlikely that all records would fall to be refused under the exemptions relied upon by the Department at first instance stage, namely articles 9(2)(c) and 9(2)(d). Even with the removal of reliance on the latter exemption, it is my view that it is difficult to disagree with the appellant’s assertion following a review of the 63 documents submitted to this Office.
40. Following the review by the investigator of the remaining documents, I consider that seven cannot be considered unfinished documents or data within the meaning of article 9(2)(c) but are final and complete. These documents are numbered by the Department as records 11, 19, 20, 31, 32, 34, 47, 58, 60 and 63. A short analysis of each follows.
a. Record 11
Record 11 is a document titled “Forest Strategy Actions and Implementation Plan for the Forest Strategy 2023-2027”, consisting of eight pages. It is a “clean” document with no annotations or editing of any kind, indicating that it is in a complete and finished state.
b. Record 19
Record 19 is a working version of record 20, with inserted and deleted text and one or other “bubble” box in the margins indicating formatting of the document. As is more fully explained at paragraph 56 below, though this document is in an evidently incomplete and unfinished state, following an application of the public interest test mandated by article 10(3), there is a clear public interest in disclosure of the information contained in this document as it provides an insight into the Department’s environmental thinking and decision-making process that outweighs the interest in withholding the information. Moreover, it contains no comments constituting discussion of the text within the private thinking space of the Department, which further strengthens the argument for release.
c. Record 20
Record 20 is a document titled “Forest Strategy development – Consideration of Ambition” consisting of eight pages also. It appears to be a “clean” version of record no. 19, incorporating the editing that appears in the latter document. As it is complete and finished, it cannot fall to be considered an unfinished document within the terms of article 9(2)(c) and cannot be withheld.
d. Record 47
Record 47 is a document which has as its heading “Intervention 6 – Open Forests”, consisting of 11 pages with no editing marks of any kind. In the email to which it is attached (record 46), it is described as “updated”, a fact which, combined with its being a “clean” document, gives one to understand that it is a complete and finished document.
e. Record 58
Record 58 appears to be the final version of the FSIP, incorporating an Appropriate Assessment Screening and a Natura Impact Report, constituent elements of the FSIP. The email to which it is attached (record 62) has as its subject heading the words “Implementation Plan NIR [Natural Impact Report] Final”, which is a clear if not conclusive indicator that the document is the final version of at least one predecessor document. In fact, the investigator in this appeal confirms that there are a number of previous versions of the document included in the records provided to this Office by the Department. Though record 58 appears to be the culmination of changes made to its predecessor versions, an inspection of record 63 and corresponding email correspondence reveal that this latter document is that culmination. However, as record 58 is a “clean” document with no editing of any kind, it is my view that it cannot, for that reason, be considered an unfinished document but rather a document in a complete and finished state that cannot be withheld.
f. Record 60
Record 60 is a table included in an email (record 59) as an attachment. According to the text of the email, the table was to be appended to the SEA Environmental Report. The document has no comments, deletions, annotations or any other marks or notes indicating that it is anything other than in a complete and finished state. Accordingly, it cannot be considered information that falls within the embrace of article 9(2)(c) and must be released.
g. Record 63
Following on from discussion above of record 58, record 63 appears to be the final version of the FSIP. The subject line of the email to which it is attached has the text “Implementation Plan NIR [Natural Impact Report] Final”, which is a clear if not conclusive indicator that the document is the final version of at least one predecessor document. As record 63 appears to be the culmination of changes made to its predecessor versions and has no editing marks or notes of any kind, it is my view that it cannot, for that reason, be considered an unfinished document but rather a document in a complete and finished state and cannot be withheld.
41. As records 11, 19, 20, 47, 58, 60 and 63 cannot be considered to be unfinished documents such as to fall within the embrace of article 9(2)(c), and as the Department has pleaded no other exempting AIE provision to prevent release, they cannot be withheld from the appellant. As stated earlier, the fact that they form part of an ongoing process does not confer on them either the quality of being material in the course of completion or of unfinished documents. It is only documents, and not processes, that attract the protection of article 9(2)(c). Accordingly, as these records cannot benefit from the exemption from release provided by this article, there is no requirement to consider the provisions contained in article 10 of the AIE Regulations in respect of them.
42. In respect of the other records that constitute the remaining documents, namely records 2, 4, 13, 16, 17, 22, 23, 25, 26, 29, 32, 31, 34, 36, 38, 40, 41, 43, 45, 48 and 51, an assessment must be made of whether they can truly be captured by the exemption in article 9(2)(c) such as to be capable of being withheld from the appellant. Following a review of all such documents, I am of the view that they all can be considered unfinished such as to be captured by the exemption. This is because they are in a state of incompleteness, being drafts with a variety of annotations, corrections, suggested insertions, deletions, highlighted text and amendments or are awaiting such editing and change. Accordingly, the next step is to consider whether these draft documents are capable of surviving the balancing test mandated by article 10(3) of the AIE Regulations.
Public Interest Test
43. Article 10(3) of the AIE Regulations and Article 4 of the Directive make it clear that the public interest must be considered based on the individual circumstances of a case. A review by this office is considered de novo and therefore it is based on the circumstances of the case at the time of the review. This approach has been endorsed by the decision of the High Court in M50 Skip Hire Recycling Limited v the Commissioner for Environmental Information [2020] IEHC 430 (see paragraphs 18, 64 and 76).
44. In considering the public interest served by disclosure, I am mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” As such, the AIE regime recognises a very strong public interest in openness and transparency in relation to environmental decision-making. There is undoubtedly a strong public interest in transparency as to how public authorities, such as the Department, carry out their functions with regard to environmental factors.
45. That being said, the AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information. Recital 16 of the AIE Directive provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. One such case is in respect of unfinished documents or material in the course of completion. The general public interest in such an exception is evident from the European Commission’s Explanatory Memorandum on the AIE Directive, which notes that “it should also be acknowledged that public authorities should have the necessary space to think in private. To this end, public authorities will be entitled to refuse access if the request concerns material in the course of completion or internal communications. In each such case, the public interest served by the disclosure of such information should be taken into account”. This was reiterated by the Court of Justice in Case C-619/19 Land Baden-Württenberg v. DR (paragraph 44).
46. I note that the information under consideration consists of draft documents that were to become in time final versions of the FSIP, the AA and the SEA or were draft texts that were to be incorporated into them.
47. In the absence of any knowledge of the nature or number of documents that have not been released to him, the appellant has argued that records exist which do not fall to be refused under article 9(2)(c), that the Department has failed to take account of previous decisions of the Commissioner and that it has not applied article 10 in its processing of his request.
48. In a preliminary submission lodged with this Office dated 8 May 2023, the Department avers to the FSIP being subject to an ongoing SEA/AA process and to the fact that the information requested is part of an ongoing deliberative process. In respect of the exercise mandated by article 10(3) to weigh up the factors favouring release of information over those which favour its being withheld, it states that a factor in favour of the latter point is allowing documents to be fully completed before “information on the review process is made available.” Following a request from the investigator assigned to the appeal for detailed submissions, the Department’s positon was revealed to be that, as the 63 records relate to the ongoing SEA/AA process which is an iterative process, these records are viewed as material in the course of completion.
49. As established at paragraphs 36-38 above, the Department’s reliance on the argument that the remaining documents constitute material in the course of completion fails as, upon the publication of the FSIP, the SEA and AA for the purposes of the statutory consultation process, they ceased to have the condition of documents that were actively being worked upon such as to be protected from release by virtue of this element of article 9(2)(c).
50. The Department, in further submissions to this Office, has stated that, in weighing the public interest served by disclosure against the interest served by refusal, it has considered the factors in favour of release to be the making available to the public, where practical and allowed under the law, in a transparent manner, information affecting the environment; and the factors in favour of withholding the information to be allowing the documents to be fully completed before information on the review process is made available. The Department is of the view that releasing draft documentation to the public can cause members of the public to have a legitimate expectation of incoming schemes or strategies which are still subject to extensive change. On balance, the Department decided that the public interest in this case is best served by withholding the information sought. It notes, further, that the SEA/AA process is a critical step in the process of securing State Aid approval from the European Commission for the next Forestry Programme. It adds that the State Aid negotiation process is sensitive and to make documents available ahead of the final decision could negatively impact the negotiations. In addition, it states that the State Aid approval process may result in changes to the FSIP, SEA and AA documentation and that to provide iterative versions of documents before they are finalised would not be appropriate as changes could be taken out of context and may not be indicative of the final position agreed. For these reasons, it considers that it is not appropriate to release any of the 63 documents it has provided to this Office.
51. The Department’s justification for non-release is on the basis that release could cause members of the public to have a legitimate expectation of incoming schemes or strategies which are still subject to extensive change, in other words, could give rise to misunderstandings.
52. I consider that should the Department have misgivings about what it considers to be the premature release of the information at issue in this case, it could mitigate its feared outcome by making it clear that the information released is not in a finalised state and that the content of any information it releases is subject to change such that no reliance can be placed on it, that it may not survive any internal review process or, indeed, that the State Aid approval process it is to undergo at the European Commission could subject it to not insignificant change.
53. Whilst the Department cites the sensitivity of State Aid negotiations at EU level as a reason to withhold the information requested, it gives no further detail as to why or how release of the information could affect that sensitivity. Neither does it give any indication of how release could negatively impact the negotiations. The Department has not provided any basis on which to conclude that there was a real and substantial possibility of a negative impact on negotiations. Further, as the CJEU noted at paragraph 69 of its decision in Land Baden-Württenberg v. DR: “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” (my emphasis).
54. Having considered the factors that weigh in favour of disclosure of the information to the appellant, it now behoves me to consider the factors that might favour withholding that information. Uppermost in my mind is the fact that all of the documents under consideration contain drafting notes, comments, suggestions, deletions and the like, either created by Department staff working on them, or by advisors engaged to provide expertise and guidance with a view to their completion. There is an argument that such material, being in an unfinished or incomplete state, constitutes information that should not be released as it has been created within the “thinking space” that public authorities require in order to formulate policy and carry out decision-making in private and that is recognised by the exemption provided in article 9(2)(c). A review of the remaining documents reveals that they contain a combination of:
a. deleted text (still visible in strikethrough form),
b. newly inserted text introduced into the main body of the text (notable by being underlined) and
c. comments in comment boxes, either in Word or in pdf documents, or incorporated into the main body of text and described variously as either “comments” or “recommendations”.
55. I am of the view that the public interest in disclosure of the deleted text and the newly inserted text outweighs the interest in maintaining the Department’s private thinking space with respect to its preparation. There is a clear public interest in disclosure of this information as it provides an insight into the Department’s environmental thinking and decision-making process. It allows for a comparison of draft versions of documents with their final and complete counterparts. On the other hand, having regard to the general content of the text, I do not consider that its disclosure would undermine the maintenance of the “private thinking space” which the exemption in article 9(2)(c) of the Regulations is designed to protect.
56. The private thinking or deliberative space, which there is an interest in maintaining, arises most clearly in respect of the comments, as they include discussions between the Department and its advisors with regard to the progression of the drafts. Whilst there is a public interest in ensuring transparency and access to environmental information and a public interest in providing access to information which contributes to a greater understanding of the Department’s environmental decision-making processes and functions, it is my view that this interest is satisfied to a large extent through the disclosure of the deleted and newly inserted text in the draft documents, as well as the publication of the finalised documents in the course of the statutory consultation process and which are still publicly available. In addition, as I have already outlined, there is also a recognised interest in allowing public authorities a safe space in which to deliberate and this is explicitly recognised by the inclusion of the exception contained in article 9(2)(c) of the Regulations and article 4(1)(d) of the Directive. In this case, I am satisfied that requiring the Department to make the comments publicly available may impact the manner in which similar processes are conducted in the future and impede the provision of robust feedback and the conducting of detailed deliberations with regard to the preparation of essential documents. This is an interest to be protected. I am also of the view that the comments are not necessary in order to understand or make sense of the draft documents which contain them, particularly in circumstances where the completed documents have now been published and changes which have occurred between the draft documents and the completed documents will for the most part be evident through a comparison of each. Therefore, I am of the view that the comments in the remaining documents can be withheld from release, as the public interest in withholding them outweighs the public interest in releasing them, for the reasons given above.
57. I note that in several of the remaining documents, there are comments and recommendations that are not in the form of comment boxes but rather are incorporated into the main body of the text for review, comment and further elaboration by the Department and its advisors. I consider these, likewise, to be the preserve of the private thinking space of the Department as they are akin to the comments contained in comment boxes. For this reason, they can be withheld.
58. For ease of reference, I have detailed in the appendix attached to this decision the comments and recommendations in the various drafts which may be withheld from release. It goes without saying that the Department is at liberty, if it so chooses, to release some or all of this information to the appellant.
59. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I vary the Department’s decision, directing it to release all the information it withheld from the appellant except that indicated in the appendix attached to this decision.
60. 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