Decision
Mr F and Department of Housing, Local Government and Heritage
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-127458-C6S0Y6
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-127458-C6S0Y6
Published on
Whether the Department were justified in relying on articles 8 (a)(iv) & 9(1)(b) of the AIE Regulations to refuse the appellants request
7 March 2024
1. On 21 June 2022, the appellant wrote to the Department requesting the following: “A copy of the Ministerial Order served on Coillte relating to Slieve Bloom Mountains SAC circa 26th May 2022 and all relevant correspondence which has not been provided previously under AIE-043-202.”
2. The Department responded on 15 July 2022, informing the appellant that it had located 57 relevant records, all of which were being refused “on the basis that this issue is ongoing and unfinished business and the release of the records could jeopardise legal proceedings.” The schedule of records attached to this decision outlined that the Articles of the Regulations being relied upon to refuse release of each of the 57 records & 2 attachments was “Article 8. (a) (iv) & 9. (1) (b) having regard to Article 10”
3. The appellant requested an internal review on 18 July 2022.
4. The Department replied on the 15 August 2022 affirming its original decision, while also informing the appellant that: “The 56 records (plus 3 attachments) which have been refused relate to the protection of the Slieve Bloom Mountains Special Area of Conservation and the enforcement of a Ministerial Restoration Order under Regulation 36 of S.I. No. 477/2011 - European Communities (Birds and Natural Habitats) Regulations 2011. The release of these records could be prejudicial to the full and effective enforcement of that Ministerial Order. The disclosure of this information would adversely affect the confidentiality of the 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 and a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries).”
5. The appellant appealed to my Office on 19 August 2022.
6. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department of Housing, Local Government and Heritage. I have also examined the contents of the records at issue. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
what follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. The Department has refused the appellant’s request on the basis of articles 8 (a)(iv) & 9(1)(b) of the AIE Regulations and also referred to the Freedom of Information Act, while stating that the release of the records could jeopardise legal proceedings. The appellant has appealed such refusal.
8. My review in this case is concerned with whether the Department is entitled to rely on Articles 8 (a)(iv) & 9(1)(b) of the AIE Regulations to refuse the appellant’s request.
9. The grounds for refusal of a request for environmental information as set out in articles 8 and 9 of the AIE Regulations are subject to the provisions of article 10 of the Regulations.
10. Article 10(3) of the Regulations requires public authorities to consider each request on an individual basis and to weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest. In general, there is a presumption in favour of the release of environmental information.
11. In this case, the Department has refused access to the relevant records under article 8(a)(iv) & 9(1)(b) of the Regulations. Article 8(a)(iv) provides that a public authority “shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law”. This includes the Freedom of Information (FOI) Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts. Article 9(1)(b) allows for a public authority to refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice.
Article 8(a)(iv)
12. Article 8(a)(iv) of the AIE 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)”.
13. 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 “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.
14. In considering the application of article 8(a)(iv) to this appeal, the first step is to define the relevant “proceedings”. The Court of Justice in Flachglas has 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 Regulations) “refers to the final stages of the decision-making process of public authorities” (para 63).
15. 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).
16. When considering whether an adverse impact has been established, it is useful to consider paragraph 69 of the CJEU’s decision in Land Baden-Württemberg which makes it clear that:
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”.
17. When relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect that confidentiality. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
18. Having examined the records in question in this appeal it appears that the majority of information does not relate solely to the final stages of the decision making process of the Department in relation to the relevant Ministerial Order. In addition to this the Department have failed to identify a reasonably foreseeable adverse impact resulting from disclosure of these records, therefore I am not satisfied that article 8(a)(iv) can be relied upon in order to refuse release of all of the records in question.
19. It also appears from the information submitted to this Office that the Department has simply adopted a blanket approach to the refusal of the records at issue by claiming that article 8(a)(iv) of the AIE Regulations applied to all of the records and did not conduct a record by record examination. It may be the case that article 8(a)(iv) is applicable in respect of certain records, or parts thereof, subject to article 10. However, I am not satisfied that the Department has undertaken any substantial consideration of the content of the individual records, as is required, before refusing access to environmental information under the AIE Regulations.
Article 9(1)(b)
20. Article 9(1)(b) of the Regulations states that;
“9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect—….
(b) the course of justice (including criminal inquiries and disciplinary inquiries).”
21. The wording of the article makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the public authority must set out the reasons why it considers that the disclosure of the information at issue could specifically and actually undermine the course of justice as set out by the CJEU at paragraph 69 of Land Baden-Wurttemberg v DR, Case C-619/19. The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical.
22. In its submission to this office the Department set out that failure to comply with a Ministerial Direction is a criminal offence, and that disclosure of both the Ministerial Direction and the other records in question which led to the Ministerial Direction being served may prejudice any potential criminal case. No such case has been initiated, nor has there been any suggestion by the Department in the information submitted to this Office that any such case is pending or will be necessary. The possibility of the release of these records undermining the course of justice in potential future proceedings which may or may not proceed is not sufficient to rely on Article 9(1)(b).
23. In light of the above, I cannot find that the Department’s reliance on articles 8 (a)(iv) & 9(1)(b) of the AIE Regulations is justified. Given the circumstances of this case I do not believe that it is appropriate for this Office to direct the release of information at this point as relevant exemptions may apply to some of the information. I consider that the most appropriate course of action to take is to annul the internal review decision of the Department.
24. In my view, the legal effect of this decision to annul the internal review decision made on 15 August 2022 is that the Department must issue the appellant with a new internal review decision under article 11 of the AIE Regulations. Article 12(3) of the AIE Regulations allows for a decision made by a public authority under article 11 of the AIE Regulations to be appealed to my Office. Article 12(5) of the AIE Regulations provides that I may review the decision of the public body and affirm, vary or annul the decision concerned, specifying the reasons for my decision. I therefore consider that where I annul a decision of a public authority, this only has the effect of annulling the internal review decision, not the original decision.
25. Having carried out a review under article 12(5) of the AIE Regulations on behalf of the Commissioner for Environmental Information, I hereby annul the internal review decision of the Department. The result of this decision is that a new internal review process should be carried out by the Department under article 11 of the AIE Regulations.
26. 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