From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-159611-J3W3T4
Published on
Whether the Department was justified in refusing access to the information requested on the basis that the request was manifestly unreasonable under article 9(2)(a) of the AIE Regulations
27 November 2025
1. On 3 March 2025, the appellant made the following request to the Department:
“Can I have a copy of all submissions made when the “Draft Revised Wind Energy Development Guidelines December 2019” guidelines were out for public Consultation in December 2013 and again in 2019 ”.
2. Following the appellant’s original request to the Department, the decision maker in the Department contacted the appellant on 20 March 2025, noting that “the Department received approximately 7,500 submissions as part of the 2013 public consultation and approximately 450 submissions as part of the 2019 public consultation ”. The decision maker also made reference to article 9(2)(a) of the AIE Regulations, which sets out that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought.
3. The decision maker indicated that “given the volume of submissions received, and having regard to the ongoing work of the section, including to finalise the review of Wind Energy Development Guidelines on a priority basis, the Department would likely have to refuse this request as currently set out ”. In that regard, the decision maker offered to work with the appellant to refine the scope of the request to encompass a more reasonable number of submissions. Having reviewed the engagement between the appellant and the Department, the parties were unable to agree to a refinement of the request. The appellant indicated on 7 April 2025 that “no reasonable argument has been made to not provide the information as requested .”
4. The Department then issued its original decision on 9 April 2025. The decision maker noted that in making its decision, the Department had regard to the prior engagement to try and reach an agreement regarding the scope of the appellant’s request. As there was no agreement to refine, the decision maker noted that the decision was made in the context of the provisions of the AIE Regulations and the wording of the appellant’s original request.
5. The Department’s original decision set out that it identified 7,950 records falling within the scope of the appellant’s request. The Department refused access to these records “having regard to the provisions of article 9(2)(a) of the AIE Regulations, as the request is manifestly unreasonable where the administrative burden would obstruct and significantly interfere with the normal course of the Department’s activities ”.
6. The Department outlined the following in relation to the 2013 records:
“_The Department received approximately 7,500 records, many of which utilised a similar template as the basis for their submission. After an initial scoping exercise, it appears that the Department has approximately 1500 unique documents relating to this public consultation. The Department estimates that it would take at least 10 minutes per record to ensure each record is appropriately reviewed and redacted. However, in some cases, where submissions are more detailed, this may take longer in practice.
To calculate the administrative burden, the Department is using the estimate of 10 minutes per record. Spending 10 minutes per record on 1500 documents would equate to 250 hours of work excluding any preparatory work to evaluate the records_”.
7. The Department further outlined the following in relation to the 2019 records:
“The Department has undertaken some initial redaction work in respect of the 2019 records and is estimating that it would take 5 minutes per record to prepare these records for public release. As there are approximately a further 450 records, this would take another 38 hours to prepare for public release ”.
8. Taking the request as a whole, the Department’s original decision indicated that the work involved to grant the appellant’s request would be as follows:
• It would take three Administrative Officers from the section approximately 288 hours to review
• This would equate to a little less than 14 working days per Administrative Officer with approximately 41 working days in total diverted from the section
9. The Department added that “this assumes a reasonably seamless process whereby review and redaction of the documents is straightforward and quick with all staff involved focusing solely on this work and requiring no lead in time in this regard ”. In addition, the Department added that “it is likely that a significant amount of time would be needed to prepare reassigned staff for this work, particularly as many would have many staff would have no experience with redaction software or processes ”.
10. The Department further outlined that the administrative burden from the appellant’s request would interfere with the normal course of the Department’s activities, specifically the Climate and Environmental Planning Policy (CEPP) section. The Department outlined that the CEPP is a policy section within the broader planning division, which itself has a policy and legislative function and focus.
11. The Department also provided an insight into current commitments and activities currently being undertaken, which included the following:
i) Further to a commitment in the recently published Programme for Government 2025 - Securing Ireland’s Future, the CEPP section is working to prioritise the publication of updated Wind Energy Development Guidelines as a matter of priority
ii) The CEPP section is also working to advance a number of pieces of key legislation in a time sensitive manner to give effect to the requirements of European legislation, including in the context of a Pilot Infringement case taken against the State by the European Commission.
iii) The CEPP section is also dealing with a high volume of judicial reviews, which require ongoing and urgent inputs as they progress through the Courts.
iv) The Department is also working towards the Programme for Government commitment to provide planning guidelines for solar energy development.
12. The Department also submitted the following work being carried out more generally in line with the commitments in the Programme for Government:
“the wider planning division is working at full capacity to: prioritise the implementation of the First Revision to the National Planning Framework, which CEPP is also playing a central role in advancing, to support the resourcing of the planning sector in line with the Ministerial Action Plan on Planning Resources to help deliver homes faster and to both commence the Planning and Development Act 2024 and prepare supporting secondary legislation in this regard. These are important priorities for the Department and Government and are complex and time-consuming demands on the division ”.
In addition, the Department stated that “to undertake the work required to release the records requested would have a significant detrimental effect on the ability of the section to both deliver on the commitments of Government and to respond effectively and in a timely manner on matters of importance to the State ”.
13. The Department’s original decision noted that it was for the reasons outlined above that it considered the appellant’s request to be manifestly unreasonable “due to the nature of the records concerned and having regard to the undue administrative burden that would be placed upon the section in reallocating significant resources and capacity away from numerous critical matters for a significant number of weeks ”.
14. The Department’s original decision also set out its considerations in weighing the public interest served by disclosure against the interest served by refusal of the appellant’s request, in accordance with articles 10(3) and 10(4) of the AIE Regulations. The Department took account of the following factors in favour of release:
• “The ability of members of the public to exercise their rights under the AIE Regulations.
• The need for openness and transparency in how public bodies come to decisions”.
15. In considering the public interest factors that favour withholding the records, the Department took account of the following:
• “The ongoing proceedings of the Department,
• The need to ensure a public body is able to perform their functions effectively.”
16. The appellant requested an internal review of the Department’s decision on 19 April 2025, noting his disagreement with the Department’s decision and noting that the internal review should reconsider the decision along with the following:
• “Reverse the refusal in whole or in part;
• Consider phased, partial, or representative disclosure of the records;
• Provide access to redacted submissions where possible;
• Engage with [the appellant] to refine the scope of the request in a collaborative way”.
17. In his internal review request, the appellant also set out contentions regarding the public interest test, noting that, in his view, the Department insufficiently weighed the public interest considerations. In this regard, the appellant noted the following:
“The public interest in transparency and accountability concerning environmental policy—especially one as significant as wind energy planning—should outweigh administrative inconvenience. The public's ability to scrutinise how policy is shaped by stakeholder input is fundamental to democratic and environmental governance, as recognised under the Aarhus Convention and the AIE Regulations .
Moreover, the fact that these consultations occurred years ago—and have shaped or continue to shape critical national policy—makes the transparency imperative even more pressing .”
18. The appellant also made reference to previous correspondence he had with the Department where it indicated that certain older submissions (particularly from 2013) may no longer be easily accessible due to the decommissioning or loss of an old IT system. On this basis, the appellant submitted his view that “the unavailability of an IT system does not absolve a public authority of its obligations under the AIE Regulations. The loss of a data management system cannot be used as a basis for denying access to environmental information that would otherwise be available, had appropriate information governance and archiving practices been in place ”. In addition, the appellant added his view that this “further strengthens the public interest case for disclosure, as it demonstrates the potential risk to environmental transparency and accountability where such records may otherwise be lost or forgotten .”
19. The Department issued its internal review decision on 20 May 2025, affirming the original decision.
20. The appellant submitted an appeal to this Office which was received on 10 June 2025.
21. 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 the Department of Housing, Local Government and Heritage. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
22. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
23. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority's internal review decision and to affirm, annul or vary it. This review is solely concerned with whether the Department was justified in refusing access to the information requested on the basis that the request was manifestly unreasonable under article 9(2)(a) of the AIE Regulations.
24. In most appeals before my Office, I require the public authority to search for and review all environmental information held, and to make this information available to my Office for the purposes of my review. However, where a public authority contends that a request is manifestly unreasonable with regard to volume or range, I must address this ground for refusal as a preliminary matter. It is my view that it would defeat the purpose of article 9(2)(a) to require a public authority to process an unreasonable volume or range of information for the purpose of providing it to my Office. For this reason, I have not required the provision to this Office of copies of the information that is potentially relevant to the request in this case.
Article 9(2)(a) of the Regulations
25. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
26. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in articles 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
27. The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on a request for advice by Belarus, ACCC/A/2014/1 , paragraph 28).
28. The Minister’s Guidance, at paragraph 12.8, states that article 9(2) of the AIE Regulations “clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate ” . In light of this, I am of the view that where a public authority intends to refuse a request under article 9(2)(a) of the AIE Regulations, it should first assist the appellant to reformulate the request as appropriate. Both public authorities and appellants should seek to liaise constructively with a view to processing the request as efficiently as possible. It is important to note that constructive engagement is not, in and of itself, a requirement for a public body’s reliance on or an immediate basis for refusal under article 9(2)(a) of the AIE Regulations.
29. As previously set out above in the “Background ” section, following the appellant’s original request in this case, the decision maker liaised with the appellant in an attempt to refine the scope of the request to encompass a more reasonable number of submissions. In doing so, the Department openly showed a willingness to offer any assistance that might be required in this regard.
30. I am satisfied that the Department sought a reformulation of the request in this case in an attempt to refine its review of the identified records in order to be able to respond to the request. The decision-maker, in addition, offered assistance to the appellant in this endeavour. However, as the reformulation of a request requires collaboration on the part of an appellant, I am of the view that greater willingness on the part of the appellant in this case to reformulate its request such as to reduce the potential number of records in scope would have been fruitful and would likely have allowed the appellant to receive some of the information originally sought.
31. Article 4(1)(b) of the AIE Directive provides that “Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable ” . The European Commission’s First Proposal for the AIE Directive for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit .” It noted that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Public authorities should be able to refuse access in such cases in order to ensure their proper functioning .” The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated .” (Report adopted on request for advice by Belarus, ACCC/A/2014/1, para. 28).
32. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, more than simple volume or complexity is required. Both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. In this respect, I note the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission (Konsumenteninformation) , at paragraphs 108-110, and the guidance at page 84 of the Aarhus Guide. I also note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that this duty indicates that individual requests should, in principle, be on matters of detail. As such, the fact that a request is detailed does not mean that it is necessarily unreasonable.
33. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort, or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission , at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
34. This position is supported by recent comments from Advocate General Medina in his opinion on Coillte v Commissioner for Environmental Information Case C-129/24 , in which he stated “in so far as it constitutes an exception to the general rule that information must be provided, refusal on the ground of a manifestly unreasonable request must remain exceptional” (at paragraph 117). In this opinion he also states “In particular, with regard to the volume of the information requested, according to Article 3(2)(b) of Directive 2003/4 that factor (as well as the complexity of the information requested) justifies an extension of the one-month time limit in which the administration must reply. It follows from a combined reading of Article 3(2)(b) of Directive 2003/4 and Article 4(2)(b) of that directive that the volume of the requested information alone does not render a request manifestly unreasonable ” (at paragraph 119). He concludes however that a holistic view must be taken of each case, stating “it follows that determining whether a request is manifestly unreasonable depends not on the number, the nature or the frequency of requests taken in isolation, but on all the circumstances of each case ” (at paragraph 125).
35. It is also important to bear in mind article 5 of the AIE Regulations and Articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exemption in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 to the AIE 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 .” Accordingly, in cases involving article 9(2)(a) this Office may consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
36. In both its original and internal review decisions, the Department refused the request on the basis of article 9(2)(a), arising from its view that the request was manifestly unreasonable having regard to the volume or range of information sought and the time and resources that would have to be deployed in order to respond to the request.
37. In addition to the details included in its original and internal review decisions set out in the “Background ” section, in its internal review decision, the Department’s internal reviewer stated the following:
“As part of my review, I have examined the scale of records involved and note that the efforts of the decision maker to engage with you to narrow/clarify the scope were unsuccessful. I have also considered whether it is reasonable/feasible to assign Departmental staff to conduct the very significant scale of work that is required and was set out clearly in the decision maker’s letter to you, and I conclude that it is not. The Department as a whole, and the team working in Planning Division are balancing many urgent commitments and priorities at present and it is not possible to divert staff to this administrative task .
As regards the use of technological solutions to assist, I find that given the volume and nature of the original records, dating back to 2013, the possibility of the inclusion of personal/sensitive data or commercially sensitive information and the associated work, there would remain a very substantial need for human screening, and that is the basis for the calculation of time set out by the original decision maker ”.
38. The Department’s submissions to this Office essentially replicated the grounds and reasons for refusal of the information expressed in its original and internal review decision letters to the appellant. No additional points were made and the Department’s position regarding the public interest issues remained the same as set out in its original and internal decision letters which is noted in the “Background ” section above.
39. While the appellant did not provide a submission in this case, within his statement of appeal, the appellant set out his position as follows:
“I am unhappy that the department are unable to supply either the 2013 or 2019 public submission to the public which they are required to do. It is my understanding that all submissions for 2013 where once available online but due to some IT issue they are no longer online. This I find unacceptable. We have requested these submission a number of times. We did await to see if the would come available some time in the future but still after 3 years of request we are still being refused ”.
40. In reviewing this case, the Investigator found relevant information on the Department’s website concerning the 2019 Public Consultation on the revised Wind Energy Development Guidelines Public Consultation on the revised Wind Energy Development Guidelines. The Investigator noted the following contained in the Terms and Conditions section:
“Respondents are advised that the Department is subject to the Freedom of Information Act 2014 and Data Protection legislation. Personal, confidential or commercially sensitive information should not be included in your submission and it will be presumed that all information contained in your submission is releasable under the Freedom of Information Act 2014 ”.
41. The Investigator also noted the following contained in the What will we do with your response section:
“Responses will inform the finalisation of the Guidelines which will be published and issued by the Minster for Housing, Planning and Local Government under Section 28 of the Planning and Development Act 2000 (as amended). Please note that submissions received will be made available on the Department’s website. In any event, all submissions received will be subject to the provisions of the Freedom of Information Act and Data Protection legislation. See also Private Statement under the Documents link above ”.
42. The Investigator then wrote to the Department with a number of queries, including seeking clarification regarding the Department’s position on what information it typically would publish in relation to submissions received.
43. The Department’s response included the following:
“It is the intention of the Department to release all of the 2019 submissions before the end of the year on the Department’s website. It is now the position of the Department that best practice requires a redaction of all identifiable information from submissions notwithstanding the text included in the terms and conditions section referenced. In light of this the Department has already begun a process of redacting all submissions received as part of that public consultation. The Department also takes a position that it will grant access to any reasonable request for specific submissions from the 2019 or the December 2013 public consultation that is receives via FOI or AIE .
It is the position of the Department is that a request for all submissions across both the 2019 and December 2013 consultation is manifestly unreasonable but is happy to engage with any requester regarding a refined request. For example the Department recently released 95 submissions as part of a single AIE request ”.
44. Regarding the online availability of submissions, the Department submitted the following:
“The Department did previously release all of the December 2013 submissions upon the conclusion of that public consultation, however these records were not redacted. The Department advised anyone making a submission at the time that the onus was on the individual making the submission to not to include material of a private nature in the body of their submission and that all information included in the submission would be published .
These records are no longer available online as they were not retained when the Department updated its website as part of the move to gov.ie. It is now the position of the Department that best practice would require a redaction of all identifiable information from the December 2013 submissions if rereleased, notwithstanding the previous release of the documents without redaction. It is this redaction process, as noted in our previous submissions, of at least 1500 unique submissions that would require an extensive resourcing and time commitment which makes the initial request manifestly unreasonable ”.
45. The Department has not said where this “best practice ” comes from. The Department has not set out a legal basis for this. The only exemptions open to the Department are those set out in the AIE Regulations. Thus for any redactions to take place, they must be sourced in one of those exemptions.
46. The Department states that the time required to carry out these tasks would interfere with its other core functions. The Department submits that it would take three Administrative Officers approximately 288 hours, 14 working days per Administrative Officer or 41 working days to review the whole request. Regarding the administrative burden of the 2013 consultation, “the Department is using the estimate of 10 minutes per record. Spending 10 minutes per record on 1500 documents would equate to 250 hours of work excluding any preparatory work to evaluate the records ”. In relation to the 2019 records, the Department have estimated that it would take “5 minutes per record to prepare these records for public release. As there are approximately a further 450 records, this would take another 38 hours to prepare for public release ”. I also note the Department’s comments regarding the interference this would have on the normal course of the activities of the CEPP section, including the work it is currently undertaking.
47. As set out above, I note from its correspondence with this Office that it is now the Department’s position that a redaction exercise on of all identifiable information from submissions to the consultations is necessary before considering release of any information relevant to the appellant’s request. I also note that the Department has already begun a process of redacting all submissions received as part of that public consultation.
48. However, the Department has not explained which AIE exemption requires it to carry out this redaction exercise. I assume, since it is redacting personal data, that the Department is relying on Article 8(a)(i):
“public authority shall not make available environmental information in accordance with article 7 where disclosure of the information . . . would adversely affect . . . the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information , and where that confidentiality is otherwise protected by law
49. On the facts of this case it is clear that those submitting information to the Department were clearly told that all of the information submitted would be release to the world at large. All of the information relating to the 2013 consultation was in fact already released. The Department has not made the case that any adverse effect arose from this release.
50. Consent is defined in the GDPR as follows:
‘consent’ of the data subject means any freely given, specific, informed and unambiguous indication of the data subject’s wishes by which he or she, by a statement or by a clear affirmative action, signifies agreement to the processing of personal data relating to him or her
51. In my view it is clear that the data subjects here consented to release of the information in the submissions. It is a freely given, specific and informed indication of the data subject’s wishes. This does not have to be done by a statement, but can be done by a clear affirmative action. Simply put, by making a submission that the data subject was told would be made available to the public, the data subjects were signifying agreement with this processing of their personal data.
52. As the authors of the submissions have consented to full release of the submissions, I am satisfied there is no legal basis that requires the Department to redact the personal information in the submissions. I am therefore not satisfied that it has been established that article 8(a)(i) applies to the withheld information.
53. The Department have further suggested that there might be commercially sensitive information contained in the submissions. I am equally satisfied that the authors of the submissions have consented to the release of any information that could potentially be categorised as commercially sensitive, and in circumstances where the authors have been advised that “it will be presumed that all information contained in your submission is releasable under the Freedom of Information Act 2014” any such information cannot be considered to be confidential for the purposes of article 9(1)(c) of the AIE Regulations.
54. In the circumstances I am satisfied that it is appropriate for me to annul the decision of the Department and direct release of the information sought.
55. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision under article 9(2)(a) of the AIE Regulations. I direct the Department to release the information to the requestor.
56. 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