Decision
Mr Ken Foxe and An Bord Pleanála
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-99704-X4S2K0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-99704-X4S2K0
Published on
Whether: (i) ABP was acting in a judicial capacity in the circumstances such that it was excluded from the definition of “public authority”; and (ii) if not, whether article 8(a)(iv) of the Regulations provides ABP with grounds for refusal of the requested information.
1. On 6 October 2020, the appellant wrote to An Bord Pleanála (ABP) requesting “copies of all records held referring to or relating to plans for the resumption of public hearings into the Galway Ring Road” from 1 June 2020 to the date of his request.
2. ABP issued a decision on the appellant’s request on 13 October 2020. It refused the request without citing any grounds for refusal under the AIE Regulations. Instead, it informed the appellant that he had already requested the records under the Freedom of Information Act and had been issued with a response letter “with information”. It went on to note that the case file in question was “still a live case” and that ABP “is not in a position to release documents relating to files that are still live and awaiting a conclusion”. It also noted that “detailed planning files are available to the public three days after the decision is made by the Board” and informed the appellant that “once available, you can view these files by contacting the public access desk of An Bord Pleanála and arrange for a copy of the records if you so wish”.
3. The appellant responded to ABP on 13 October 2020 requesting an internal review of the original decision. He noted that ABP had given “no valid reason for the refusal of the request either in this letter, or in the previous FOI”. He advised ABP that what he was seeking were “administrative records relating to the resumption of the hearings, and when it was feasible for them to resume” and he submitted that “these records have no bearing whatsoever on the outcome of the public hearings and simply describe the inevitable process that resulted due to the Covid-19 pandemic”.
4. An internal review outcome was provided to the appellant on 12 November 2020. This affirmed the original decision and repeated the assertion that ABP was “not in a position to release documents relating to files that are still live and are awaiting a conclusion”, without referring to any of the grounds for refusal provided for in the AIE Regulations. The internal review also noted that “the approach to holding oral hearings given the current Covid-19 restrictions was an operational decision and it is at the discretion of the Board to choose the methodology available to it to hold oral hearings in order to proceed with determining cases as expeditiously as possible”. It concluded by noting that that the appellant had been “informed in writing of the details and procedures for the resumption of the oral hearing” for the Galway Ring Road case and that this was “the only documentation from the case that we can issue as the case is live and awaiting its conclusion”.
5. The appellant appealed to my Office on 13 November 2020.
6. Despite providing no reasons to the appellant at decision and internal review stage, in submissions to my Office, ABP relies on article 8(a)(iv) of the AIE Regulations to justify its refusal of the appellant’s request. It also seeks to argue that decisions around the operation of oral hearings are carried out “with the authority of [ABP] as part of its quasi-judicial function” such that ABP falls outside the definition of “public authority” for the purposes of this appeal.
7. One of the records at issue contains the name and contact details of a third party. The appellant has confirmed that he does not seek access to that information, therefore that personal information does not form part of my consideration of the requested records.
8. My review in this case is therefore concerned with:
i. whether ABP should be considered to have been acting “in a judicial capacity” in respect of the information requested such that it should not be considered a “public authority” within the meaning of the AIE Regulations for the purposes of the request; and
ii. if ABP is considered to be a “public authority” for the purposes of the request, whether it is entitled to refuse the information on the basis of article 8(a)(iv) of the Regulations.
9. ABP refused the appellant’s request at both stages without providing any basis for that refusal under the AIE Regulations. The Regulations are clear that refusal of access to environmental information is permissible only in limited circumstances where the grounds for refusal set out in those Regulations apply. Recital 16 of the AIE Directive (which is transposed by the AIE Regulations) notes 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”. In addition, articles 7(4) and 11(4) of the AIE Regulations make it clear that a public authority is required to provide reasons for refusal both at decision and internal review stage. In this regard, the judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot…constitute a sufficient reason for the refusal”. ABP’s decisions even fail to invoke a statutory ground for refusal. This is simply unacceptable and I would encourage ABP to take steps to ensure that it provides adequate reasoning for any future decisions to refuse access to environmental information. As noted by the Courts on a number of occasions, the reasons given must be sufficient to “disclose the essential rationale on foot of which the decision is taken” (see Meadows v Minister for Justice, Equality & Law Reform [2010] IESC 3).
10. Notwithstanding the absence of reasoning in its original and internal review decisions, ABP did provide additional detail as to the basis for its refusal of the appellant’s request in response to requests for information from my Office. I consider that ABP’s failure to provide reasons in itself provides grounds for the remittal of its decision in this case. However, given the delays which have already been occasioned to the resolution of the appellant’s appeal, I consider it more appropriate to consider whether the reasons provided by ABP at submission stage provide grounds for refusal of the request. The appellant has been advised of those reasons and has provided submissions on them and I am satisfied that the fair procedures entitlements of the parties have been respected.
11. I also wish to express my regret that there has been a considerable delay in the resolution of this appeal, which was due to a combination of factors, some of which related to my Office. I apologise for this and am committed to improving the efficiency of my Office in order to achieve timely reviews in the future.
12. The manner in which ABP has dealt with this request for information is unacceptable. I wish to express my particular disapproval of the manner in which ABP has advised both my Office and the appellant as to the potential release of information related to his request. In its original decision to the appellant ABP advised him that it was “not in a position to release documents relating to files that are still live and are awaiting conclusion” before noting that “decided planning files are available to the public three days after the decision is made by [ABP]” and advising him that “once available, [he could] view these files by contacting the public access desk”. It was only in its initial submissions to my Office in December 2020 that ABP, for the first time, sought to rely on article 8(a)(iv) of the Regulations as a basis for its refusal of the requested information as “release of the records may be injurious to the impartiality of [ABP] in determining this case” and “there is a need to preserve confidentiality having regard to the subject matter and circumstances”. Its submissions anticipated that a decision in relation to the Galway Ring Road application would be decided by 30 April 2021 and that “once this application has been decided by [ABP] all documents will be available for public review within 3 days after the decision as specified in section 146 of the Planning and Development Act 2000 as amended”.
13. My Investigator wrote to ABP in August 2021 asking it to confirm whether the Galway Ring Road application had been decided and, if so, whether the information requested by the appellant was now in the public domain. She also requested that ABP provide the appellant with further detail on the grounds for its refusal of his request in writing. ABP responded in the same month to indicate that a date for decision had been pushed out to 28 August 2021 and might be subject to further extension. It also provided written reasons for refusal to the appellant in which it again noted that the Galway Ring Road application was “currently a live case and the release of these records could impair a future decision and premature release may contaminate the decision-making process”. It advised the appellant that “once a decision has been made on this case you can view the aforementioned case file by contacting the public access service”.
14. Having raised the potential application of article 8(a)(iv), ABP had to be asked once more to set out in detail what it considered to be the “proceedings” to which the exception contained in article 8(a)(iv) would apply. In its responding submissions of October 2021 it also sought to argue that it was excluded from the definition of “public authority” in the circumstances of the case as it was acting in a “judicial capacity”. Those submissions did not provide any update as to the status of the decision on the Galway Ring Road application. In December 2021, my Investigator herself discovered that a decision had in fact been reached by ABP and wrote to ABP to confirm this and to ask whether the documents which were withheld from the appellant were now publicly available and/or had been provided to him. ABP responded to my Investigator indicating that the Galway Ring Road application had been decided and “the records relating to the same are in fact now in the public domain for anyone to request” but that “the appellant has not requested access to aforementioned records”. It continued that if the appellant wished to do so “he can contact our Public Access Service”.
15. When asked once more, in April 2022, to confirm whether the information withheld from the appellant had been made publicly available, ABP responded as follows:
“As [the withheld information] do[es] not form part of the planning case file and are, in fact, internal documents relating to how [ABP] would proceed with the holding of the oral hearing of the Galway Ring Road case due to Covid-19 restrictions in place at the time, the documents are not available for public review.
It is the manner in which it would proceed with the oral hearing that is the subject of [the withheld information]. This process is at the discretion of [ABP] and there is no public participation in this internal process.
[ABP] used its discretionary power under section 135 of the [Planning and Development Act] 2000 to conduct an oral hearing and assign a person to conduct the oral hearing on behalf of [ABP] on the Galway Ring Road case.
The public oral hearing opened in Galway on 18th February 2020 and was adjourned due to the Covid-19 restrictions. However, as it became clear that it was not going to be possible to complete the hearing in a normal format for the foreseeable future, [ABP], aware of its statutory obligation under section 126 of the [Planning and Development Act] 2000 to ‘ensure that appeals and referrals are disposed of as expeditiously as may be and, for that purpose, to take all such steps as are open to it and to ensure that, in so far as it practicable, there are no avoidable delays at any stage in the determination of appeals’ made a decision to recommence the oral hearing using a virtual meeting format. All parties to the case were notified of the details of the recommencement of the oral hearing. The hearing recommenced virtually on 12th October 2020. The hearing concluded on 4th November 2020”.
16. It appears to me that ABP never intended to make the information requested by the appellant publicly available. This begs the question as to why ABP, on three separate occasions in correspondence both to the appellant and to my Office, suggested it would be publicly available once it had made a decision. I accept that it may have been the case that ABP was at all times referring only to documents which it considered to form part of the planning case file as distinct from the requested records. However, it is strange that such an obscure reference would be made to planning case file records when ABP’s position was that “internal records” rather than “planning case file records” were the subject of this appeal. This is, at best, careless and, at worst, deliberately misleading. In any event, it amounts to unacceptable conduct on the part of ABP having regard to its obligations under the AIE Regulations. ABP should take steps to ensure that its processes and communications in relation to AIE requests are clear and, that any refusal to provide information is grounded in the exceptions provided for in the AIE Regulations and clear as to the basis on which the public interest test has been decided.
17. I have now completed my 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);
• the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• the decisions of the Court of Justice of the European Union in C- 217/97 Commission v Germany, C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany (Flachglas), C-470/19 Friends of the Irish Environment v Commissioner for Environmental Information (Friends of the Irish Environment), C-60/15 Saint-Gobain Glass Deutschland GmbH v European Commission (Saint Gobain) and C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg);
• the decision of the High Court in Right to Know v An Taoiseach [2018 IEHC 372. ]
• the decision of the Supreme Court in Zalewski v Workplace Relations Commission [2021 IESC 24. ]
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
18. I will consider in the first instance, whether ABP comes within the definition of “public authority” in the circumstances of this case since, if it does not, there will be no need for me to consider whether article 8(a)(iv) applies.
Can ABP be said to have been acting in a “judicial capacity” in the circumstances of this appeal such that it falls outside the definition of “public authority” contained in article 3(1) of the Regulations?
19. Article 3(2)(e) of the AIE Regulations provides that a “public authority” for the purpose of the Regulations “does not include any body when acting in a judicial or legislative capacity”. This transposes article 2(2) of the AIE Directive which sets out the definition of “public authority” before providing that “Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity”. ABP’s position is that it was acting in a quasi-judicial capacity with respect to the information at issue meaning it should not be considered a “public authority”.
20. ABP’s submissions on this point can be summarised as follows:
i. It submits that its decision in this case involves the exercise of functions under the Strategic Infrastructure Development (SID) process provided for in the Roads Acts 1993 to 2015 and that those functions are quasi-judicial in nature. ABP exercises decision-making functions under the Roads Acts which were previously exercised by the Minister as those functions were transferred to it by section 215 of the Planning and Development Act 2000 (as amended). It notes that section 48 of the SID process requires a road authority (which in most cases is a local authority) to provide certain information to the public, to the owners and occupiers of lands referred to in a proposed road scheme and to any person who the authority considers may be impacted by the scheme. This information must include an indication that objections to the scheme may be made to ABP within a specified time period. Section 49 of the Roads Act requires an application for approval of a proposed motorway scheme to be made to ABP and provides that, before approving the Scheme, ABP must ensure that a public local inquiry into the Scheme is conducted and consider the report and any recommendation of the person who has conducted that inquiry as well as any objections to the Scheme which have been made. ABP may then approve the Scheme, with or without modifications, or refuse approval. ABP submits that applications for approval of an SID will generally be accompanied by a parallel application under section 51 of the Roads Acts for the underlying proposed road development. An Environmental Impact Assessment Report must accompany an application under section 51 and both applications are decided on together by ABP. Finally, ABP notes that section 135 of the Planning and Development Act 2000 provides that ABP or an employee of ABP duly authorised by it, may assign a person to conduct an oral hearing of an appeal, referral or application on its behalf and provides that person with discretion as to the conduct of the hearing.
ii. ABP argues that it is clear that the statutory provisions relating to the SID process all form part of its quasi-judicial role in determining the application and that process includes, where it considers necessary, the holding of an oral hearing. The report of the oral hearing and any recommendations arising from it must then be considered by ABP in its final decision.
iii. It submits that the information at issue in this appeal concerns the holding of an oral hearing in relation to the Galway Ring Road SID application and the necessity to hold that hearing remotely as a result of the Covid-19 pandemic. It argues that the holding of an oral hearing and the appointment of a person to conduct that hearing is done with the authority of ABP as part of its quasi-judicial functions.
iv. It refers to p 49 of the Aarhus Guide which notes that:
“Bodies or institutions acting in a legislative or judicial capacity are not included in the definition of public authorities. This is due to the different character of such decision-making from other kinds of decision-making by public authorities. Regarding decision-making in a legislative capacity, elected representatives are in theory directly accountable to the public through the election process. Regarding decision-making in a judicial capacity, tribunals must apply the law impartially and professionally without regard to public opinion. Many provisions of the Convention are not suitable to be applied directly to bodies acting in a judicial capacity, given the need to guarantee an independent judiciary and to protect the rights of parties to judicial proceedings.
This exception applies not only to parliaments and courts, but also to executive branch authorities when they perform legislative or judicial functions. For example, municipal councils sometimes serve in both legislative and executive capacities. When they are acting in an executive capacity, they are subject to the Convention’s obligations on “public authorities”; where they are acting in a legislative capacity they are not.”
v. It submits that “in this instance, [ABP] was acting in its legislative or judicial function (set out in the statutory process [under the Roads Act]) and used its discretion to conduct an oral hearing to assist it in coming to its decision”. It goes on to state that “the records in question relate to holding that oral hearing remotely: as a result of the Covid-19 pandemic the person or persons authorised by [ABP] decided to conduct the oral hearing remotely”.
21. The appellant’s position is as follows:
i.He submits that no explanation has been provided by ABP as to the basis for its position that all aspects of the SID process involve the exercise of judicial functions by ABP.
ii. He argues that ABP’s function as a consent authority is quintessentially administrative in nature and, having regard to the provisions of the Aarhus Convention, amounts to an environmental decision-making function rather than a judicial one:
a. He submits, that the decision-making functions exercised by ABP fall within article 6 of the Aarhus Convention which provides for public participation in such decisions. He notes in that regard that article 6(7) of the Convention contemplate s that an oral hearing might take place as part of such environmental decision-making and that article 6(8) requires that due account be taken of the outcome of public participation in the decision.
b. He also submits that the decision made by ABP is akin to a “decision” as referred to in article 9 of the Convention which requires State Parties to ensure that adequate procedures are in place to judicially review decisions subject the provisions of article 6 of the Convention. He notes that this provision allows for a prior administrative review before recourse to judicial review.
iii. He submits that the AIE Directive and Regulations exclude only bodies acting in a “judicial capacity” from the definition of “public authority” and not those acting in a “quasi-judicial capacity” such that ABP’s arguments are not supported by a plain reading of the Directive or the Regulations.
iv. . He also argues that since the exclusion for bodies acting in a “judicial capacity” amounts to an exclusion or derogation from the right of access, it must be interpreted narrowly.
v. He submits that the mere fact that proceedings of ABP may include an oral hearing and certain procedural safeguards does not render the procedure judicial in nature even if those safeguards are similar to those which are found in judicial proceedings.
vi. He also submits that the oral hearing is part of the public participation procedure providing a means for concerned members of the public and the applicant to submit information to ABP as part of the permitting procedure and does not amount to the hearing of a justiciable dispute by ABP.
vii. He submits that the making of a decision to grant or refuse planning permission does not determine or establish rights and is quintessentially an administrative decision making function. He also notes that the powers transferred to ABP by the Roads Act were previously exercised by the Minister and submits that if those powers were judicial in nature they could never have been carried out by the executive.
viii. He submits that under Irish constitutional law a judicial function is more properly understood as one which involves the administration of justice under Article 34.1, which Article 37 makes clear can only be carried out by a court. He refers to the decision of the Supreme Court in Zalewski v An Adjudication Officer & Ors [2021] IESC 24 in this regard. He argues that ABP’s function is quintessentially administrative in nature and does not involve the administration of justice, the resolution of a dispute as to the existence of legal rights, the determining or ascertaining of rights or the imposition, final determination or enforcement of rights or penalties.
ix. He notes that the exclusion of bodies acting in a judicial capacity is intended to protect the independence of the judiciary and the rights of parties to judicial proceedings and submits that neither of these concerns is at issue in this appeal.
x. He submits that paragraph 55 of the Advocate General’s opinion in Friends of the Irish Environment puts it beyond doubt that ABP, as the body before which environmental decision-making takes place, is a public authority and that no aspect of its functions is excluded. Paragraph 55 reads as follows:
“On the whole, I assume that the overall purpose and spirit of the Aarhus Convention should limit any interpretative creativity which could be attached to the definition of a ‘public authority’. If the overall aim of the instrument is to increase public participation and accountability in decision-making in the field of the environment (as the preamble to the Aarhus Convention notes), then the instrument should logically cover the type of bodies or institutions before which such decision-making effectively takes place. That is, a priori and from an abstract point of view at an institutional level, neither upstream in a legislature (where the rules for that decision-making are developed), nor downstream in cases of judicial review (where the legality of a decision once taken may be reviewed and, in the event of irregularities, is typically referred back to the public authority so it can adopt a new).”
xi. Finally, the appellant notes that the Court of Justice in C-217/97 Commission v Germany found that Germany had failed to adequately transpose the predecessor to the current AIE Directive (i.e. Directive 90/313/EEC) and held that it was not permissible to exclude “administrative procedures” from the scope of the directive (para 28).
22. Further requests for information were made to ABP following the appellant’s submissions. Its responses to those requests were not entirely coherent however I have done my best to summarise them as follows:
i. ABP submitted that it operated in a quasi-judicial capacity with legislative functions and described the functions exercised by it under the Roads Acts (previously exercised by the Minister) as “an executive decision-making process”.
ii. In response to the appellant’s arguments that its functions were not judicial as they did not amount to the administration of justice in accordance with the test set out in Zalewski, ABP submitted that it “acts in a quasi-judicial capacity…in accordance with its legislative function…and has not purported to act as a Court of Law”.
iii. Having confirmed to my Office that it had made a decision in respect of the Galway Ring Road, ABP was asked by my Investigator whether it should benefit from the exclusion which applies to a body acting in a judicial capacity given that the CJEU in Flachglas had suggested that the application of a similar exception to bodies acting in a legislative capacity applied only for the period until the conclusion of the legislative process. ABP responded that it acts in a quasi-judicial capacity. It noted that “under section 146 of the Planning and Development Act 2000, as amended, when the legislative process of making a decision on a case before it under the said Act has concluded, within 3 working days, ABP is obliged to make available to the public for inspection all documentation on the matter at the offices of ABP or by electronic means”. ABP concluded that “accordingly, ABP should not benefit from such exclusion”.
iv. However, when asked whether it had made the information available, in accordance with its statements in earlier submissions to my Office that “once the application has been decided, all documents will be available for public review”, ABP noted that the information requested by the appellant had not been made publicly available as those documents “did not form part of the planning case file and are, in fact, internal documents relating to how [ABP] would proceed with the holding of the oral hearing of the Galway Ring Road case due to Covid-19 restrictions in place at the time”. It submitted that “it is the manner in which it would proceed with the oral hearing that is the subject of [the refused information]” continuing that “this process is at the discretion of [ABP] and there is no public participation in this internal process”. It explained that the public oral hearing opened on 18 February 2020 but had to be adjourned due to Covid-19 restrictions. It submitted that “as it became clear that it was not going to be possible to complete the hearing in a normal format for the foreseeable future, the Board, aware of its statutory obligation under section 126 of the PDA Act to ‘ensure that appeals and referrals are disposed of as expeditiously as may be and, for that purpose, to take all such steps as are open to it to ensure that, in so far as is practicable, there are no avoidable delays at any stage in the determination of appeals’ made a decision to recommence the oral hearing using a virtual meeting format”.
23. It seems to me that what ABP is seeking to argue here is that when making a decision as to operation of an oral hearing in light of Covid-19 restrictions, it was exercising a quasi-judicial function. However, the submissions provided by ABP in support of its position border on incoherent. On the one hand, it claims to be exercising a quasi-judicial function when deciding to continue with an oral hearing remotely. On the other, it argues that it was in fact subject to a statutory obligation to do so given that section 126 of the Planning and Development Act 2000 requires it to ensure that appeals and referrals are disposed of efficiently and without avoidable delay. In its internal review outcome, it describes the decision as “an operational decision” but in later submissions to my Office it characterises it as a quasi-judicial one. In the same set of submissions, it describes itself as operating “in a quasi-judicial capacity with legislative functions” engaged in “an executive decision-making process”.
24. Article 3(2)(e) of the AIE Regulations provides that a “public authority” for the purpose of the Regulations “does not include any body when acting in a judicial or legislative capacity”. This transposes article 2(2) of the AIE Directive, which sets out the definition of “public authority” before providing that “Member States may provide that this definition shall not include bodies or institutions when acting in a judicial or legislative capacity”.
25. In its decision in Friends of the Irish Environment the Court of Justice would appear to have suggested that this exclusion applies to what are generally described as quasi-judicial functions in an Irish context, that is, the exercise of functions by administrative authorities on the basis of a limited statutory authority vested in it by the Oireachtas, which might be considered to amount to an exercise of judicial power. I say this because paragraph 34 of the CJEU’s decision notes that “it is clear from both the Aarhus Directive itself and Directive 2003/4, the purpose of which is to implement that Convention in EU law, that, by referring to ‘public authorities’, their authors intended to designate not judicial authorities, in particular courts, but as the Court has previously held, only administrative authorities since, within States, it is they which are normally required, in the exercise of their functions, to hold environmental information”. The Court also noted, at paragraph 38, that “by adopting Directive 2003/4, the EU legislature took account of the diversity of the existing rules in the Member States concerning public access to information in court files, as attested to by the first sentence of the second subparagraph of Article 2, point 2…of that directive, which give[s] Member States…the option of excluding from the scope of the directive bodies and institutions corresponding to the definition of ‘public authority’ which, such as certain independent administrative authorities, may occasionally be called upon to act in the exercise of judicial powers without themselves having the nature of a court (see, by analogy, with regard to a minister required to exercise legislative powers without personally forming part of the legislative, judgment of 14 February 2012, Flachglas Torgau, paragraph 49)”. The CJEU also made it clear that the exclusion applying to “bodies or institutions when acting in a judicial or legislative capacity” must be interpreted in functional terms.
26. A functional interpretation of what constitutes “judicial capacity” was considered by the Supreme Court in Zalewski. In that case, O Donnell J noted that “repeated attempts to establish a more precise definition of the judicial power and the concept of justiciability” proved “a dispiriting (if revealing) exercise” which “resulted in a series of negative conclusions” (para 41). O’Donnell J went on to quote the remarks of Lord MacDermott, the Lord Chief Justice of Northern Ireland in his lectures on Protection from Power under English Law which “acknowledged the difficulty of drawing any clear line” but suggested that “a judicial decision implies the presentation of their case by the parties to a dispute, the ascertainment of the relevant facts and of the relevant law and a decision which is reached by applying the relevant law to the relevant findings of fact”. He also referred to the remarks of the “noted constitutional scholar” Geoffrey Marshall who asserted that “it is not possible to construct from judicial materials a single set of reasonably unambiguous criteria for calling a procedure ‘judicial’. Moreover, many of the tests historically enunciated by the courts are now insufficiently precise to discriminate within a large penumbra of doubtful cases” (para 42). The Supreme Court was therefore of the view that the criteria in McDonald v Bord na gCon [1965] IR 217 which had traditionally been applied “as a canonical checklist” had to be applied “as part of a general approach to the issue”, to be considered “alongside, rather than replacing, the observations in Lynham v Butler (No 2) and those in State (Shanahan)” and to be applied “with an understanding of the substance it is meant to determine…and as indicating general features which tend to show the administration of justice, rather than as a definitive and prescriptive test” (paras 75 and 92). It is worth nonetheless recalling the criteria set out by Kenny J in the McDonald case, in order to give a general indication of whether ABP can be said to have been acting in a judicial capacity in the circumstances of this case
i. a dispute or controversy as to the existence of legal rights or a violation of the law;
ii. the determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
iii. the final determination (subject to appeal) of legal rights and liabilities or the imposition of penalties;
iv. the enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgment;
v. the making of an order by the Court which as a matter of history is an order characteristic of Courts in this country.
27. In Lynham v Butler (No 2) [1933] IR 74, Kennedy CJ noted that “the judicial power is exercised in determining in a final manner, by definitive adjudication according to law, rights or obligations in disputes between citizen and citizen, or between citizens or the State, or between any parties whoever they be and in binding the parties by such determination which will be enforced if necessary with the authority of the State” (see Zalewski, para 53). Kennedy CJ also quoted the statement of Griffith CJ in the Australian High Court in Huddart, Parker & Co v Moorhead (1908) 8 CLR 330 in which he noted that “the exercise of [judicial power] does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action” (see Zalewski, para 54).
28. In State (Shanahan) v Attorney General [1964] IR 239, Davitt P suggested that “there can be gleaned from the authorities certain essential elements of the [judicial power]” which include “1, the right to decide as between parties disputed issues of law or fact, either of civil or criminal nature or both; 2, the right by such decision to determine what are the legal rights of the parties as to the matters in dispute; 3, the right, by calling in aid the executive power of the State, to compel the attendance of the necessary parties and witnesses; 4, the right to give effect to and force such decision, again by calling in aid the executive power of the State. Any tribunal which has and exercises such rights and powers seems to me to be exercising the judicial power of the State” (see Zalewski, para 70).
29. In this case, what is at issue is a decision by ABP as to whether to continue with an oral hearing remotely or postpone that hearing until Covid-19 restrictions permitted its holding in person. Although it is clear from ABP’s submissions that it considered its own statutory obligations to ensure hearings were conducted expeditiously when coming to that decision what occurred was consideration of its own legal obligations. That course of action therefore did not involve the consideration of a dispute between other parties involving disputed issues of law or fact nor did it involve the final determination of legal rights or liabilities or the enforcement of those rights or liabilities or the imposition of a penalty by the court. Although the Supreme Court have indicated that the McDonald criteria are only indicative, the fact that none of them are satisfied in this case indicates that the function being carried out by ABP in considering the mechanism through which an oral hearing is to be conducted is an administrative rather than a judicial one and does not involve ABP acting in a judicial capacity. My conclusion in this regard is strengthened by the fact that I do not consider any of the criteria referred to by the Courts in Lynham and State (Shanahan) to have been fulfilled in this case either. I am therefore not satisfied that ABP can be said to have been acting in a judicial capacity in regard to the information at issue.
30. Indeed, even ABP itself appears to suggest, in its latest submissions to my Office, that the information requested in this case does not relate to its decision-making functions under either the Roads Acts or the Planning and Development Act 2000 (as amended). It noted that the information requested amounted to “internal documents relating to how ABP would proceed with the holding of the oral hearing of the Galway Ring Road case due to Covid-19 restrictions in place at the time”. It noted that the subject of those documents was “the manner in which [ABP] would proceed with the oral hearing” which in turn was an “internal process…at the discretion of [ABP]” in which “there was no public participation”. ABP’s position therefore was that it was not required to make those documents publicly available in accordance with the requirements of section 146 of the Planning and Development Act 2000 (as amended). Section 146(5) provides that:
“within 3 days following the making of a decision on any matter falling to be decided by it in performance of a function under or transferred by this Act or under any other enactment, the documents relating to the matter -
a. shall be made available by [ABP] for inspection at the offices of [ABP] by members of the public, and
b. may be made available by [ABP] for such inspection –
i. at any other place, or
ii. by electronic means,
as [ABP] considers appropriate”.
31. I have expressed my dissatisfaction with ABP’s approach to this issue in paragraph 12 above. Insofar as this position is relevant to my consideration of the “judicial capacity” question, it must be said that ABP cannot have its cake and eat it too. If it considers the information requested to be outside the scope of its statutory decision-making functions such that it is not amenable for release in accordance with section 146 of the Planning and Development Act 2000 (as amended), it is difficult to understand how that information could be said to be related to any judicial capacity it might exercise in the performance of those functions.
32. In any case, the Court of Justice has also made it clear when considering the legislative element of the exception that the application of the exception is limited in time. In its decision in Flachglas, in which it was asked to consider the element of the exclusion from the definition of “public authority” which applied to bodies acting in a legislative capacity, the Court of Justice found that “the option given to Member States [by article 2(2) of the AIE Directive] of not regarding bodies or institutions acting in a legislative capacity as public authorities can no longer be exercised where the legislative process in question has ended”. The CJEU also made it clear in Friends of the Irish Environment that a similar approach was to be taken to the interpretation of both elements of the exception, noting, for example that a situation in which a Minister was required to exercise legislative powers “without personally forming part of the legislative” was analogous to the judicial exception which might be applied to bodies such as independent administrative authorities which “may occasionally be called upon to act in the exercise of judicial powers without themselves having the nature of a court” (see para 38).
33. ABP has confirmed that it has made a decision in relation to the Galway Ring Road SID application as of 6 December 2021. Therefore, even if it could be considered to have been acting in a judicial capacity when making arrangements for the oral hearing, its decision-making functions in this case came to an end as of December 2021 such that it could no longer benefit from the exclusion in any event.
34. As I am not persuaded that ABP can rely on the exclusion from the definition of “public authority” which applies to bodies acting in a judicial or legislative capacity, I must now go on to consider the application of article 8(a)(iv) of the Regulations.
Does article 8(a)(iv) provide ABP with grounds to refuse the requested information?
35. Article 8(a)(iv) of the Regulations provides for refusal of environmental information “where disclosure of the information would adversely affect…the confidentiality of proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts)”.
36. ABP’s submissions as to the application of article 8(a)(iv) can be summarised as follows:
i. ABP submits that refusal was justified as the release of the information “may be injurious to the impartiality of [ABP] in determining this case”.
ii. It explained that the Galway Ring Road application was being considered as a Strategic Infrastructure Development (SID) and that it considered the SID application process to be a single ongoing process from the commencement of the application to the making of a decision in respect of it. It submitted that its position reflected the statutory provisions relating to such applications i.e. sections 37E to 37J of the Planning and Development Act 2000 as amended by the Planning and Development (Strategic Infrastructure) Act 2006.
iii. It further explained that ABP exercises decision-making functions in relation to SID applications, under the Roads Acts, which were transferred to it by section 215 of the Planning and Development Act 2000 (as amended). It notes that section 48 of the SID process requires a road authority (which in most cases is a local authority) to provide certain information to the public, to the owners and occupiers of lands referred to in a proposed road scheme and to any person who the authority considers may be impacted by the scheme. This information must include an indication that objections to the scheme may be made to ABP within a specified time period. Section 49 of the Roads Act requires an application for approval of a proposed motorway scheme to be made to ABP and provides that, before approving the Scheme, ABP must ensure that a public local inquiry into the Scheme is conducted and consider the report and any recommendation of the person who has conducted that inquiry as well as any objections to the Scheme which have been made. ABP may then approve the Scheme, with or without modifications, or refuse approval. ABP submits that applications for approval of an SID will generally be accompanied by a parallel application under section 51 of the Roads Acts for the underlying proposed road development. An Environmental Impact Assessment Report must accompany an application under section 51 and both applications are decided on together by ABP. Finally, ABP notes that section 135 of the Planning and Development Act 2000 provides that ABP or an employee of ABP duly authorised by it, may assign a person to conduct an oral hearing of an appeal, referral or application on its behalf and provides that person with discretion as to the conduct of the hearing.
iv. ABP submitted that all of the records held by it relating to the Galway Ring Road application were considered by it to be part of the deliberative process on this “live case” which “concludes once a decision to grant or refuse is made by [ABP]”. It noted that “all of the documents on the case file will be made available to the public once the application process concludes with a decision by [ABP]”.
v. It refers to sections 11(7)(b) and 29 of the Freedom of Information Act 2014. It submits that records can be considered “exempt records” within the meaning of the 2014 Act and that release of the records “could impair a future decision and premature release may contaminate the decision-making process”.
vi. It submits that it is clear from the list of non-exhaustive examples provided in section 29(1)(a) of the 2014 Act that the exception contained in that section is of broad scope. It also submits that it is clear that the records requested form part of the documentation that go towards the deliberative process ABP has to undertake to decide the SID application. It relies on the remarks of the Information Commissioner in Case 080183 E Solicitors on behalf of Company A and Department of Communications, Energy and Natural Resources in which noted that “the deliberative process can be described as a thinking process that refers to the way a public body makes decisions. It involves the gathering of information from a variety of sources and weighing up or considering carefully all of the information and facts obtained with a view to making a decision or reflecting upon the reasons for or against a particular choice”. ABP submits that the records requested which “arise directly from [the SID] process” are “exactly the sort of ‘gathering of information’ for the deliberative process” described in Case 080183. It submits that ABP’s decision-making process begins on receipt of an application for an SID under section 49(1) of the Roads Acts and ends with a final determination made under section 49(3) of those Acts.
vii. It submits that the public interest “lay in favour of non-disclosure as there is a need to preserve confidentiality having regard to the subject matter and circumstances”.
viii. When asked to explain how disclosure of the information would amount to disclosure of information about its decision-making process ABP responded that the exercising of its discretion under section 135 of the Planning and Development Act 2000 with regard to the conduct of oral hearings was a direct manifestation of its power under section 135 which in turn was derived from its absolute discretion to hold an oral hearing under section 49(2) of the Roads Act.
ix. When asked to explain how the requested information was relevant to the final or deliberation stage of ABP’s decision-making process, rather than any administrative procedure leading to that decision-making process, ABP responded that the records related to the manner in which ABP held an oral hearing for the Galway Ring Road application and the legal basis for same. It submitted that the information resulting from the oral hearing in that format was put to ABP in an oral hearing report prepared by an Inspector and that this report would be deliberated upon by ABP when making its final determination. It again submitted that as ABP had yet to make its final determination, the records relate to ongoing proceedings and that the factors in favour of refusal outweighed the factors in favour of release, as the release of the records “may be injurious to the impartiality of [ABP] in determining this case”. It further submitted that there was “a need to preserve the confidentiality of the decision-making process” and “the release of these records could impair a future decision and premature release may contaminate the decision-making process”.
37. The appellant, in return, submits that the release of the records requested has no bearing on any “live case” as the records are administrative in nature and relate to the logistics of holding a public hearing during the Covid-19 pandemic.
38. There are a number of elements which must be satisfied before the question of refusal under article 8(a)(iv) arises:
i. the case must involve the “proceedings” of public authorities;
ii. those proceedings must have an element of confidentiality;
iii. that confidentiality must be adversely affected by the disclosure of the information requested; and
iv. that confidentiality must be protected by law.
39. My Office’s Investigator asked ABP to set out the “proceedings” it considered to be at issue in the case having regard to the remarks of the Court of Justice in Flachglas and Saint Gobain. The Court of Justice in Flachglas made it clear that “the concept of ‘proceedings’” referred to in article 4(2)(a) of the Directive (transposed by article 8(a)(iv) of the AIE Regulations) “refers to the final stages of the decision-making process of public authorities” (para 63). A similar conclusion was reached by the Court of Justice in the Saint-Gobain case. Although that case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention on which both the Directive and the Regulations are based. Indeed, the Advocate General, when referring to the ground for refusal at issue in Saint Gobain noted that “the same ground for refusal is laid down in article 4(2)(a) of [the AIE Directive]” before concluding that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see para 51). The Court of Justice found that “as observed by the Advocate General at point 76 of his Opinion, Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings” (see para 81).
40. ABP’s submissions indicate that it considers the “proceedings” to be the entire SID process from initial application by the road authority to the issuing of a decision by ABP. This approach is not in line with the definition of “proceedings” set out by the Court in Flachglas which make it clear that the concept of proceedings can include only the final stages of the decision-making process. The final stage of the process in this case appears to me to be the point at which ABP decides to approve the SID application (with or without conditions) or reject that application. Those are the “proceedings” which must be considered for the purposes of assessing whether article 8(a)(iv) provides grounds for refusal in this case. Were release of the recording of the oral hearing to have an adverse impact on the confidentiality of those final stages of ABP’s decision-making process then there would be a prima facie basis for refusal (subject to the application of the public interest test mandated by articles 10(3) and 10(4) of the Regulations).
41. In support of its argument that release of the records would adversely impact the confidentiality of its proceedings on the Galway Ring Road SID application, ABP relies on section 29 of the Freedom of Information Act 2014. Section 29 provides as follows:
1. A head may refuse to grant an FOI request –
a. if the record concerned contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations, considered by the body, the head of the body, or a member of the body or of the staff of the body for the purpose of those processes), and
b. the granting of the request would, in the opinion of the head, be contrary to the public interest,
and, without prejudice to the generality of paragraph (b), the head shall, in determining whether to grant or refuse to grant the request, consider whether the grant thereof would be contrary to the public interest by reason of the fact that the requester concerned would thereby become aware of a significant decision that the body proposes to make.
2. Subsection (1) does not apply to a record if and in so far as it contains any or all of the following:
a. matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations;
b. factual information;
c. the reasons for the making of a decision by an FOI body;
d. a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to functions generally or a particular function of the body;
e. a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a request containing opinions or advice of such an expert and not being a report used or commissioned for the purpose of a decision of an FOI body made pursuant to any enactment or scheme.
42. There appears to be some conflict between the test set out at section 29 of the FOI Act and the test set out under article 8(a)(iv) of the Regulations. For example, the “deliberative process” to which section 29 applies would appear wider than the “final stages of the decision-making process” to which article 8(a)(iv) applies. It is questionable, however, whether information relating to a decision as to the manner in which an oral hearing would go ahead (i.e. remotely or in person) could be considered to come within the scope of the “deliberative process” to which section 29 refers. Reference is made in article 8(a)(iv) of the Regulations to “the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts” and the interplay between the Regulations and the Freedom of Information Act is the subject of a recent reference made by my Office to the High Court in accordance with article 12(9)(a) of the Regulations.
43. The question therefore arises as to whether I need to put a decision as to the application of article 8(a)(iv) in this case on hold, pending the outcome of those High Court proceedings. However, I am not of the view that it is necessary to do so in this case, as I do not consider that the third condition set out at paragraph 38 above has been satisfied. In other words, even assuming that the confidentiality of the proceedings is protected by the Freedom of Information Act 2014, I am not satisfied that release of the information requested would have an adverse effect on that confidentiality having regard to the test set out by the Court of Justice in Land Baden-Württemberg. At paragraph 69 of its decision in that case, the Court of Justice made 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. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”. ABP has submitted that release of the records “may be injurious to the impartiality of [ABP] in determining this case”. It further submitted that there was “a need to preserve the confidentiality of the decision-making process” and “the release of these records could impair a future decision and premature release may contaminate the decision-making process”. It has made no attempt, however, to explain how release of the records might impair a decision or be injurious to its impartiality. The limited information provided by ABP is not sufficient, in my view, to warrant a conclusion that refusal would “specifically and actually” undermine the interest sought to be protected by article 8(a)(iv) of the Regulations which, as outlined in Recital 16 of the Directive “should be interpreted in a restrictive way”.
44. This is particularly the case given that a decision has now been reached by ABP on the Galway Ring Road SID application and it is therefore extremely difficult, even if the broadest interpretation possible were applied, to fathom how the release of the requested information would adversely affect the proceedings in the manner suggested by ABP. ABP’s limited submissions on the matter are further undermined by its own, somewhat contradictory, position with regard to the application of section 146 of the Planning and Development Act 2000 (as amended). As outlined above, section 146 requires ABP to release documents relating to “any matter falling to be decided by it in performance of a function under or transferred by this Act or under any other enactment” within 3 days of a decision being taken. ABP has argued that the information at issue in this appeal does not come within the scope of section 146 but yet also maintains that its release would adversely impact the confidentiality of its decision-making process such that article 8(a)(iv) provides grounds for its refusal.
45. In my view, there is no basis in the evidence before me to justify ABP’s refusal of the information requested on the basis of article 8(a)(iv) of the Regulations.
46. Having carried out a review under article 12(5) of the AIE Regulations, I annul ABP’s decision and direct release of the requested information. I note that one of the records which forms part of the requested information contains reference to a third party individual along with their contact details. As the appellant has confirmed to my Office that he is not seeking to be provided with those third party details as part of his request, those details do not form part of my direction to release and can be redacted by ABP in advance of release.
47. 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.
______________________
Ger Deering
Commissioner for Environmental Information