Decision
Ms X and Department of Housing, Local Government and Heritage
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-121133-T2Q9Z2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-121133-T2Q9Z2
Published on
Whether the Department was justified in refusing access to certain information contained within two records identified as relevant to AIE-078-2021, under article 8(a)(i) of the AIE Regulations, and in refusing access to additional environmental information related to AIE-078-2021 and AIE-079-2021 other than the records already identified, on the basis that no further relevant environmental information is held by or for it
1. On 3 October 2021, the appellant submitted a multi-part request to the Department, under the Freedom of Information (FOI) Act 2014 and the AIE Regulations, seeking access to information relating to licence applications regarding the Kish and Bray banks. This decision solely concerns the request as dealt with under the AIE Regulations.
2. In her request, the appellant provided background detail regarding the information she was seeking. Among other things she stated that she was unable to locate any information pertaining to the licence applications or any supplementary/additional information on the on the Department’s website. She also stated that she was unable to locate records relating to investigations, surveys or other activities of the developers around the Kish and Bray banks under the relevant licence(s). She specifically outlined that the information requested comprised –
“the following information which is non-personal in nature:
1. Records that give details of applications for the authorisation, licence/s, and planning permission needed to progress projects or carry out exploration within the terms of foreshore licence/s in the above mentioned time period 1999 – 2004 in the Kish and Bray banks for example for: the recording of wind strengths and wave conditions, seabed conditions, archaeological remains encountered, and progress generally contained in bi-monthly reports or other to the relevant authority.
2. Records or details of any briefs or submissions, meetings or notes on the part of the Bray and Kish banks consortium /developers or their agent or representative, or by any civil servant on behalf of the consortium /developers to the relevant authority on the designation of SPAs, SACs or in relation to Natura 2000 on the area that includes the Kish and Bray Banks, which were made during the period of 2004 - 2012.
3. Records that give details of the 1999 – 2004 licence applications, the environmental information submitted in support of those Licence applications and the supplementary environmental information or other additional information stated to have been submitted between 1999 and 2004.
4. Records that give details of the 1999 – 2004 licences and information / supplementary information in relation to ‘Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna’ either submitted by the developer, requested from the developer by the department or other subsidiary body, or received in relation to this directive by the department from any other government body in relation to the Kish and Bray bank offshore project and foreshore licence/s between 1999 and 2004.
5. Records that give details of any public consultation process that was carried out between 1999 and 2004 in relation to the Licence applications including submissions received from the public or from other departments.
6. Records that give details of any application under the AER V or AER VI scheme for the award of a foreshore licence or any permission given to the above named developer/s to carry out any explorations or surveys around the Bray and Kish Banks.
7. Records that give details of the Department's assessment of any environmental information that was submitted in support of or subsequent to the Foreshore Licence application/s made at any stage between 1999 – 2004.
8. Records that give details of correspondence to the Department from Dúchas the Heritage Service or from the Department to Dúchas regarding any environmental information that was submitted in support of or pursuant to the Foreshore Licence application/s between 1999 – 2004.
9. Records of any supplementary or additional information submitted by or requested from the developer/s by the relevant authority subsequent to the initial foreshore licence application process between 1999 - 2004.”
3. On 6 October 2021, the Department wrote to the appellant and noted that she had submitted her request under both the FOI Act 2014 and the AIE Regulations. In respect of the AIE Regulations, it stated that her request would be deemed invalid, outlining that the AIE requests must state, in terms that are as specific as possible, the environmental information that is the subject of the request (see article 6(1)(d) of the AIE Regulations). It also explained that article 7(8) of the AIE Regulations provides that where a request is made by an applicant in too general a manner the public authority shall, as soon as possible and at the latest within one month receipt of the request invite the applicant to make a more specific request and offer assistance to the applicant in the preparation of such a request.
4. The Department suggested that for the purposes of processing the appellant’s request more efficiently and to reduce any potential search and retrieval fees, it was open to the appellant to refine parts 1, 3, 4, 5, 6, 7, 8, and 9 of her request, as follows:
1. “Records relating to applications for foreshore licences for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks between 1999 – 2004. The records in this case refer to the application form and supplementary information submitted by the applicant to the Minister as part of these specific foreshore licence applications.
2. Records relating to the assessment of the foreshore licence applications and the material which was considered by the Minister in granting foreshore licences for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks between 1999 – 2004.”
5. The Department noted that part 2 of the appellant’s request, was being dealt with separately and that it would be in contact with her in respect of that part.
6. On 7 October 2021, the appellant re-submitted her request to the Department as follows:
1. “Records relating to applications for foreshore licences for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks between 1999 – 2004. The records in this case refer to the application and supplementary information submitted by the applicants to the Minister as part of these specific foreshore licence applications, such as any preliminary recording of wind strengths, seabed conditions or archaeological remains.
2. Records or details of any briefs or submissions, meetings or notes on the part of the Bray and Kish banks consortium/developers or their agent or representative, or by any civil servant on behalf of the consortium /developers to the Minister or relevant body under the authority of his department on the designation of SPAs, SACs or Natura 2000 provisions in the area that includes the Kish and Bray Banks, which were made during the period of 2004 - 2012.
3. Records relating to the assessment of the foreshore licence applications and the material which was considered by the Minister in granting the foreshore licences for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks between 1999 – 2004.
4. Records referring to reports on the marine habitat or local fauna around the Kish and Bray banks or records relating to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna either submitted by the developers or requested from the developers by the Minister’s department or body under his department, in relation to the foreshore licences for site investigations for an offshore windfarm at Kish and Bray banks, between 1999 – 2004.
5. Records of findings or correspondence relating to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna received by the Minister’s department from another public body such as Minister for Communications, Marine and Natural Resources or the Environmental Protection Agency in relation to the Kish and Bray bank offshore project and foreshore licences between 1999 and 2004.
6. Records held by the Department that give details of any public consultation process that was carried out between 1999 and 2004 in relation to these Licence applications for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks including submissions received from the public or other bodies pursuant to any public consultation process that took place between 1999 and 2004.
7. Records that give details of any application under the AER VI scheme for the award of foreshore licences for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks or records of any subsequent permission given to a developer to carry out any related explorations or surveys to inform the proposed development of an offshore windfarm at Kish and Bray banks under the AER VI scheme between 1999 and 2002.
8. Records that give details of the Department's assessment of, or feedback/queries on, any environmental information that was submitted in support of or subsequent to Foreshore Licence application/s made between 1999 – 2004.
9. Records that give details of correspondence to the Department from Dúchas the Heritage Service or from the Department to Dúchas regarding specific environmental information (for example on marine biodiversity and habitats in the Kish and Bray banks area, the protection of or designation of areas of protection for marine habitats, or on seabirds and and the protection or making of designated areas of protection for same in this area) pursuant to the awarding of Foreshore Licence applications to inform the proposed development of an offshore windfarm at Kish and Bray banks between 1999 – 2004. “
7. The appellant noted that part 2 was being dealt with separately. The Department gave parts 1, 3, 4, 6, 7, 8, and 9 the reference number AIE-078-2021 and gave part 2 the reference number AIE-079-2021.
8. On 15 October 2021, the Department wrote to the appellant asking her to confirm a refined version of AIE-078-2021. On 17 October 2021, the appellant confirmed that the refined version of AIE-078-2021 concerned:
“Records relating to licence applications to undertake surveys and data collection for an offshore wind farm in the vicinity of the Kish and Bray Banks granted to the Kish Consortium in August 2000, as follows:
i. Geophysical and geotechnical investigations on the Bray Bank (KIS53_7A)
ii. Geophysical and geotechnical investigations on the Kish Bank (KIS53_7)
Under the European Communities (Access to Information on the Environment) Regulations 2007 and Section 12 of the Freedom of Information Act 2014, I wish to request the following information which is non-personal in nature:
1. Records relating to applications for the two specified foreshore licences for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks.
2. Records relating to the assessment of these foreshore licence applications and the material which was considered by the Minister in granting the foreshore licences for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray.
3. Records referring to reports on the marine habitat or local fauna around the Kish and Bray banks or records relating to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna either submitted by the developers or requested from the developers by the Minister’s department or body under his department, in relation to these foreshore licences for site investigations for an offshore windfarm at Kish and Bray banks.
4. Records of findings or correspondence relating to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna received by the Minister’s department from another public body such as Minister for Communications, Marine and Natural Resources or the Environmental Protection Agency as part of the assessment of these applications for foreshore licences for site investigations at Kish and Bray banks.
5. Records held by the Department that give details of any public consultation process that was carried out in relation to these Licence applications for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks including submissions received from the public or other bodies pursuant to any public consultation process that took place.
6. Records that give details of correspondence to the Department from Dúchas the Heritage Service, from the Department to Dúchas or records of correspondence between the licencee and the Development Applications Unit of Dúchas held by the department regarding specific environmental information (for example on marine biodiversity and habitats in the Kish and Bray banks area, the protection of or designation of areas of protection for marine habitats, or on seabirds and the protection or making of designated areas of protection for same in this area) pursuant to the awarding of these Foreshore Licences to inform the proposed development of an offshore windfarm at Kish and Bray banks.”
9. On 19 October 2021, the Department (NPWS) issued its original decision on AIE-079-2021. The Department refused access to the information sought. It noted that, as the Kish and Bray banks were not proposed for designation as a Special Area of Conservation (SAC) or a Special Protection Area (SPA), NPWS did not invite submissions from interested parties on the matter. Thus, it explained, it is likely that NPWS never received any records or hold meetings with the relevant consortium/stakeholders. It further outlined that, following searches carried out no relevant records were located. However, it also noted that, while it was of the view that the records sought did not, nor had ever existed, it was currently unable to access archived emails from the time period of the appellant’s request and it would contact her again, if and when such issues were resolved.
10. On 14 November 2021, the appellant sought an internal review of the Department’s decision on AIE-079-2021. Among other things, she contended that it was unacceptable that the Department was unable to access archived emails and stated that it had come to her attention that an environmental advocacy group had been provided with several records regarding the consideration of the Kish and Bray banks for designation as an SAC by the Department / NPWS. She submitted that those records included NPWS maps and presentations. She further contended that the Bray and Kish banks had been on the list of proposed sandbank habitats under consideration for designation until May 2012, when they were removed.
11. On 16 November 2021, the Department (Foreshore Section) issued its original decision on AIE-078-2021. It identified 6 relevant records (records 1-6) and part-granted access to each of them, withholding certain information under article 8(a)(i) of the AIE Regulations.
12. On 10 December 2021, the Department issued its internal review decision on AIE-079-2021. It affirmed its original decision to refuse access to the information sought. It stated its decision was in accordance with article 7(5) of the AIE Regulations and again noted that no relevant records were located, notwithstanding that the issues regarding access to archived emails had been resolved and appropriate email accounts had now been searched. In response to the appellant’s comments regarding records which had been made available to an environmental advocacy group, the Department stated that those records did not come within the scope of AIE-079-2021.
13. On 10 January 2022, the appellant submitted an appeal to this Office in respect of AIE-079-2021. The Department subsequently informed this Office that the appellant’s initial correspondence of 3 October 2021 had been revised and split in two, AIE-078-2021 and AIE-079-2021, as described above. The appellant clarified to this Office that she wished her appeal to this Office to consider AIE-078-2021 and AIE-079-2021, outlining that it was the Department’s decision to split the request and she believed an internal review decision should have issued in respect of both AIE-078-2021 and AIE-079-2021.
14. This Office notified the Department of the appellant’s position and, on 7 March 2022, the Department issued its internal review decision on AIE-078-2021, wherein it varied its original decision. While it affirmed its decision to refuse access to certain information in records 3 and 4 under article 8(a)(i) of the AIE Regulations, it annulled its decision to refuse access to certain information in records 1, 2, 5, and 6 and directed release of those records in full.
15. On 25 March 2022, the appellant informed this Office that she wished her appeal regarding AIE-078-2021 and AIE-079-2021 to proceed. She disputed the withholding of information under article 8(a)(i) of the AIE Regulations and contended that additional information related to AIE-078-2021 and AIE-079-2021 should exist.
16. I have now completed my review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the correspondence between Department and the appellant as outlined above and to correspondence between my Office and both the Department and the appellant on the matter. I have also examined the content of the records at issue. In referring to the records at issue, I have adopted the numbering system used by the Department on the schedule of records provided to the appellant with its internal review decision on AIE-078-2021. In addition, I have had regard to:
17. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
18. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
19. For the sake of clarity, I have set out below the information sought by the appellant under AIE-078-2021 and AIE-079-2021:
AIE-078-2021 (as confirmed by the appellant to the Department on 17 October 2021):
“Records relating to licence applications to undertake surveys and data collection for an offshore wind farm in the vicinity of the Kish and Bray Banks granted to the Kish Consortium in August 2000, as follows:
i. Geophysical and geotechnical investigations on the Bray Bank (KIS53_7A)
ii. Geophysical and geotechnical investigations on the Kish Bank (KIS53_7)
Under the European Communities (Access to Information on the Environment) Regulations 2007 and Section 12 of the Freedom of Information Act 2014, I wish to request the following information which is non-personal in nature:
1. Records relating to applications for the two specified foreshore licences for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks.
2. Records relating to the assessment of these foreshore licence applications and the material which was considered by the Minister in granting the foreshore licences for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray.
3. Records referring to reports on the marine habitat or local fauna around the Kish and Bray banks or records relating to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna either submitted by the developers or requested from the developers by the Minister’s department or body under his department, in relation to these foreshore licences for site investigations for an offshore windfarm at Kish and Bray banks.
4. Records of findings or correspondence relating to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna received by the Minister’s department from another public body such as Minister for Communications, Marine and Natural Resources or the Environmental Protection Agency as part of the assessment of these applications for foreshore licences for site investigations at Kish and Bray banks.
5. Records held by the Department that give details of any public consultation process that was carried out in relation to these Licence applications for site investigations to inform the proposed development of an offshore windfarm at Kish and Bray banks including submissions received from the public or other bodies pursuant to any public consultation process that took place.
6. Records that give details of correspondence to the Department from Dúchas the Heritage Service, from the Department to Dúchas or records of correspondence between the licencee and the Development Applications Unit of Dúchas held by the department regarding specific environmental information (for example on marine biodiversity and habitats in the Kish and Bray banks area, the protection of or designation of areas of protection for marine habitats, or on seabirds and the protection or making of designated areas of protection for same in this area) pursuant to the awarding of these Foreshore Licences to inform the proposed development of an offshore windfarm at Kish and Bray banks.”
AIE-079-2021 (part 2, as submitted to the Department on 7 October 2021):
“Records or details of any briefs or submissions, meetings or notes on the part of the Bray and Kish banks consortium/developers or their agent or representative, or by any civil servant on behalf of the consortium /developers to the Minister or relevant body under the authority of his department on the designation of SPAs, SACs or Natura 2000 provisions in the area that includes the Kish and Bray Banks, which were made during the period of 2004 – 2012.”
20. As indicated, the Department in its internal review decision regarding AIE-078-2021, refused access to certain information contained within records 3 and 4 under article 8(a)(i) of the AIE Regulations. During the course of this review, the Department noted that certain information contained within record 4 fell outside the scope of the appellant’s request on the basis that it refers to recruitment matters. Having examined record 4, I am satisfied that all of the withheld information on pages 16 and 17, apart from the redaction at the top left and the redacted name above “4 – Feb – 2000”, does indeed fall outside the scope of the appellant’s request. This information relates to staffing/human resource matters.
21. Additionally, regarding AIE-078-2021, I understand that the copy of record 6 as provided to the appellant with the internal review decision was corrupted. While the Department informed this Office that the appellant received the uncorrupted version of the record in response to an FOI request, I would consider it appropriate for the Department to contact the appellant to ascertain whether she is satisfied in that regard.
22. I also wish to make the following comments in respect of AIE-079-2021. I note that the Department in its acknowledgement dated 8 October 2021, original decision dated 19 October 2021, internal review decision dated 10 December 2021, and submissions to this Office dated 8 April 2022 referred to the wording of part 2 of the appellant’s initial correspondence dated 3 October 2021: “Records or details of any briefs or submissions, meetings or notes on the part of the Bray and Kish banks consortium /developers or their agent or representative, or by any civil servant on behalf of the consortium /developers to the relevant authority on the designation of SPAs, SACs or in relation to Natura 2000 on the area that includes the Kish and Bray Banks, which were made during the period of 2004 - 2012.”
23. However, on 7 October 2021, prior to the original decision, the appellant had re-submitted her entire request of 3 October 2021, and part 2 was very slightly re-worded, as follows: “Records or details of any briefs or submissions, meetings or notes on the part of the Bray and Kish banks consortium/developers or their agent or representative, or by any civil servant on behalf of the consortium /developers to the Minister or relevant body under the authority of his department on the designation of SPAs, SACs or Natura 2000 provisions in the area that includes the Kish and Bray Banks, which were made during the period of 2004 - 2012”. Accordingly, I believe it is the appellant’s wording of 7 October 2021, which defines the scope of AIE-079-2021.
24. In light of comments made by the Department, I would note that the appellant’s correspondence of 7 October 2021 is included in the email chain provided as an attachment to the Department’s submissions to this Office dated 16 May 2023. I also note that the Department stated that even though there was a slight difference in the wording and, had it been aware of same, it would have sought further clarification from the appellant, the difference would not have had impacted its response to the search details provided.
25. In all the circumstances, the scope of this review concerns whether the Department was justified in refusing access to certain information contained within records 3 and 4 of the records identified as relevant to AIE-078-2021, under article 8(a)(i) of the AIE Regulations, and in refusing access to additional environmental information related to AIE-078-2021 and AIE-079-2021 other than the records already identified, on the basis that no further relevant environmental information is held by or for it.
26. The appellant correctly submitted her request to a single organisation, namely, the Department. While I fully accept that the Department is significant in size and that different functional areas may be best placed to make informed decisions on information relating to their functions, I see no reason why the Department could not have coordinated the responses of the relevant sections and issued a single composite original decision.
Article 8(a)(i) of the AIE Regulations
27. The Department refused access to certain information contained within records 3 and 4 of the six records identified as relevant to AIE-078-2021 under article 8(a)(i) of the AIE Regulations.
28. Record 3 is described on the schedule of records issued with the internal review decision as “Public Notices, Prescribed Bodies Submissions and Replies Kish Bank” and dating between August 1999 and May 2000. Record 4 is described on the schedule of records as “Public Notices, Prescribed Bodies Submissions and Replies Bray Bank” and dating between February 2000 and March 2000. The withheld information is contained on the following pages of the records:
29. Having examined the redactions, I am satisfied that the withheld information can generally be described as the names of civil/public servants and staff of state sponsored bodies, the name of a Minister, the name of a Member of the European Parliament, the names of staff of conservation organisations, and the names and address of other individuals. There are also a small number of handwritten names, which are not self-evident to be the names of civil/public servants or staff of state sponsored bodies, however, in light of the context concerned and further details available to the Department, might be.
30. Article 8(a)(i) of the AIE Regulations provides that a public authority shall not make available environmental information 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. This provision seeks to transpose Article 4(2)(f) of the AIE Directive, which in turn is based on Article 4(4)(f) of the Aarhus Convention.
31. When relying on article 8(a)(i) of the AIE Regulations a public authority must show that the information at issue is personal information relating to a natural person, who has not consented to its disclosure; that the personal information has an element of confidentiality, that the confidentiality of that personal information is provided 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 information that has actually been withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
32. Article 8(a)(i) must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. 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 and 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 article 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.
33. As the Department ought to be aware, articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. In this regard, the High Court in Right to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to [a]rticles 10(3), (4) and (5) and 11(4) of the AIE Regulations, the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal” (paragraph 106). The Court held that in an absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
34. In its original decision, the Department simply stated that it was redacting information under article 8(a)(i) of the AIE Regulations and provided no further detail regarding its application of the provision. In addition, while it referred to article 10(1) of the AIE Regulations and noted its view that the request did not relate to information on emissions into the environment, it simply referred to articles 10(3) and 10(4) of the AIE Regulations, stating that it had weighed the public interest served by disclosure against the interest served by refusal and had determined that the public interest would not be served by disclosure. The Department gave no indication of the factors for or against released considered or detail regarding any balancing exercise carried out. In its internal review decision, the Department provided no further explanation regarding its refusal of the information withheld from records 3 and 4.
35. Notwithstanding the specific queries asked by this Office, the Department, in its submissions to this Office, stated the following in support of its reliance on article 8(a)(i) of the AIE Regulations:
“The redaction of officers of the Department from records provided in this AIE request was done in accordance with the sections policy of redaction at the time the request was made.Redaction policies are currently under review.Record 4 has an element of confidentiality as the content is outside the scope of the request and refers to recruitment matters.”
36. The Department made no reference to any consideration of article 10 of the AIE Regulations.
37. In this case, the Department seems to have merely referred to article 8(a)(i) in seeking to refuse access to the information at issue. It provided no explanation as to whether that information is, in fact, personal information, which has the quality of confidence required to engage article 8(a)(i) of the AIE Regulations. The Department also provided no explanation as to whether the confidentiality of any such information is provided by law, nor did it identify any law upon which it was relying. Furthermore, the Council made no attempt to demonstrate a clear link between disclosure and any adverse effect.
38. Having examined records 3 and 4, I am satisfied that the vast majority of the withheld information comprises the names of civil servants/public servants and staff of state sponsored bodies, a Minister and a Member of the European Parliament, which are included on documents prepared and provided in a professional capacity in the course of their duties. I am of the view that these names simply cannot be said to have the quality of confidence required to engage article 8(a)(i) of the AIE Regulations. Accordingly, I direct the release of those names, as follows:
| All redactions on the pages listed: | The specified redaction(s) on the pages listed: |
| Page 1 | Page 7 – third redaction |
| Page 3 | Page 9 – second redaction |
| Page 4 | Page 18 – third and fourth redactions |
| Page 8 | Page 19 – third redaction |
| Page 26 | Page 20 – third redaction |
| Page 28 | Page 25 – third redaction |
| Page 29 | Page 27 – third, fourth, and fifth (left of page) redactions |
| Page 30 – first redaction | |
| Page 31 – second, third, and fourth redactions | |
| Page 32 – fourth and fifth redactions |
| All redactions on the page(s) listed: | The specified redaction(s) on the page(s) listed: | |
| Page 1 | Page 16 – first redaction | |
| Page 3 | Page 17 – name above 4 – Feb – 2000 | |
| Page 4 | Page 23 – second redaction | |
| Page 5 | ||
| Page 6 | ||
| Page 7 | ||
| Page 8 | ||
| Page 9 | ||
| Page 10 | ||
| Page 11 | ||
| Page 12 | ||
| Page 13 | ||
| Page 14 | ||
| Page 15 | ||
| Page 18 | ||
| Page 19 | ||
| Page 24 | ||
| Page 25 | ||
| Page 26 | ||
| Page 27 |
39. The remainder of the withheld information comprises the names of staff of conservation organisations, the names and addresses of other individuals and handwritten names, which are not self-evident to be the names of civil servants/public servants or staff of state sponsored bodies, however in light of their context and further details available to the Department, might be. Given the Department’s failure to engage properly with article 8(a)(i) and article 10 of the AIE Regulations, I do not consider it appropriate to simply direct the release of those names. Accordingly, I direct it to undertake a fresh decision-making process in respect of those names in accordance with the AIE Regulations, as follows:
| All redactions on the page(s) listed: | The specified redaction(s) on the pages listed: |
| Page 6 | Page 7 – first and second redactions |
| Page 24 | Page 9 – first redaction |
| Page 18 – first and second redactions | |
| Page 19 – first and second redactions | |
| Page 20 – first and second redactions | |
| Page 25 – first and second redactions | |
| Page 27 – first and second (right of page) redactions | |
| Page 30 – second redaction | |
| Page 31 – first and fifth redactions | |
| Page 32 – first, second, and third redactions |
| All redactions on the page(s) listed: | The specified redaction(s) on the page(s) listed: |
| Page 21 | Page 23 – first redaction |
Article 7(5) of the AIE Regulations
40. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
41. In its submissions to this Office, the Department provided responses from the Foreshore Section (Planning Division) regarding AIE-078-2021 and from the Scientific Unit and the Designations Unit (NPWS) regarding AIE-079-2021. The Department provided relevant background information and details of its record management practices and the searches conducted to locate the information sought by the appellant.
AIE-078-2021
42. The Department stated that the foreshore function was based in the Department of Agriculture during the time period it considered relevant to the appellant’s request (1999 to 2004) and was later transferred to the Department in 2009/10.
43. The Department explained that it cannot comment on the Department of Agriculture’s practices regarding the storage, filing, archiving, retention, and destruction of information. However, regarding its own records management practices, the Department stated that it prepared draft Record Management Guidelines in 2018 as part of the rollout of the Office of the Government Chief Information Officer (OCGIO) “Build to Share eDocs file repository system”. It stated that the draft included guidelines on the storage, filing, archiving and destruction of records, however did not include a records retention schedule. It stated that it is currently in the process of developing and implementing records management policies, procedures, and retention schedules. The Department noted that records for the time period it considered relevant to AIE-078-2021 are generally only held in hard copy format.
44. The Department noted that AIE-078-2021 concerned foreshore licence applications for temporary site investigation activities “on the feasibility of founding wind turbines…and laying submarine electrical transmission cable(s)” made in 1999. It stated that the licences were approved and executed in July/August 2000 and were valid for a period of four years from April 2001.
45. The Department stated that all relevant sections of the Planning Division were contacted – the Foreshore Section, Marine Planning Policy, and Legislation. It stated that, given the subject matter, relevant records were only found in within Foreshore Section Files.
46. The Department explained that the Foreshore Section carried out searches. The Department stated that these searches included electronic searches of eDocs, the section’s G:Drive (shared drive), and Metastorm, as well as physical searches of paper records in the section and in the archive filing room. It stated that the electronic searches were undertaken using terms such as “Kish”, Bray”, “Dublin Array”, “offshore”, and “windfarm”.
47. The Department explained that once the relevant reference numbers were identified – licence numbers 53/7 and 53/7a and file numbers FS004841 and FS004842 – this made the search more focused and enabled the location of the hard copy files for both licences.
48. The Department stated that these hard copy files were created when the foreshore consenting function came under the Department of Agriculture and noted that some of the information sought may not reside in the Department due to the transfer. The Department explained that the hard copy files were considered to contain all the records relevant AIE-078-2021 and that these were the records which were released subject to redaction under article 8(a)(i) of the AIE Regulations. It also stated that these records comprised the entirety of the material considered by the Minister in assessing the foreshore licence applications.
49. In her submissions to this Office, the appellant made a number of contentions regarding the additional information she believed should exist. This Office provided a summary of these contentions to the Department and asked it to respond. I have further summarised the appellant’s contentions below:
1. The appellant contended that two documents a “sand bank justification document” and a document comprising a number a number of sandbank maps, support her view that relevant information should exist.
2. The appellant contended that the terms of section 7 of the foreshore licence granted, support her view that relevant information should exist. She provided an extract of section 7, as follows:
“During the currency of this Licence the Licensee shall provide, on a bi-monthly basis to the Minister, such reports as the Minister may seek relating to the exploratory work and other works, including progress in the making of applications for other permissions, authorisations and licenses required for the construction and operation of an electricity generating station, associated with the ultimate development of a generating station on the site.Such information shall include but shall not be limited to a summary of all information relating to wind strengths, conditions on the sea bed, marine flora and fauna as were recorded by the Licensee during the preceding two months and information on progress toward the obtaining of other relevant authorisations, licences, planning permissions and cable crossing agreements with the operators of any cable or pipeline which may be crossed as may be required for the ultimate construction and operation of a generating station on the site and shall include progress on development of an Environmental Impact Statement.Where the Minister deems it appropriate, full detail shall be promptly furnished in respect of any summary report(s) provided.”
3. The appellant contended that relevant records should exist relating to the Department (and the previous competent Department), including communications between the developers and the NPWS (formerly Dúchas), between the NPWS/ Dúchas and the Marine Licence Vetting Committee (MLVC), and between the developers and the MLVC.
4. The appellant contended that relevant records should exist of communications between the Department (Foreshore Section) and the Marine Institute.
5. The appellant contended that relevant records should exist of communications to and from Minister for the Marine and Natural Resources, Frank Fahey (2000-2002), who, she stated, finalised the foreshore licences in question, although the applications were received by his predecessor Minister Michael Woods. She also referred to comments made by Minister Fahey in the Dail on 17 October 2000 wherein he stated:
6. The appellant contended that relevant records should exist between the Department and Noel Dempsey, Minister for Environment and Local Government (1997-2002) and Minister for the Marine and Natural Resources (2004 - 2007).
7. The appellant contended that relevant records should exist of communications between the Department and Dermot Ahern, Minister for Communications Marine and Natural Resources (2002-2004).
8. The appellant contended that relevant records should exist of communications between the Department and Mary O’Rourke, Minister for Public Enterprise (1997 – 2002).
9. The appellant contended that relevant records should exist of communications between sections within the Department and named developers.
10. The appellant contended that relevant records should exist of communications from 2002 between the Department and the European Wind Energy Association on project development and licencing requirements.
11. The appellant contended that relevant records of communications between sections within the Department and the MLVC should exist. The appellant stated that the developers and the Department would have been in communication with the chair of the MLVC and committee panel members. The appellant contended that her views are supported by comments made at the Joint Committee on Climate Change and Energy Security on 14 May 2008.
12. The appellant contended that further relevant records should exist of communications between the developers and the Department (e.g. the foreshore section, the development application unit, the coastal zone management section, and the spatial planning unit).
13. The appellant stated that, in 2002, certain developers sold their share to other developers. The appellant contended that relevant records should exist, noting this transfer of ownership and implications for the viability of the project.
14. The appellant contended that relevant records should exist of communications with Dun Laoghaire Rathdown County Council, Bray Municipal Council, or Wicklow County Council regarding the development of Kish and Bray banks.
50. In response to point 1 of the appellant’s contentions, the Department stated that neither of these documents come within the scope of any aspect of AIE-078-2021 and it is not clear within which part of the request the appellant considers them to fall. The Department did not specifically respond to the remaining points rather it stated that for each “the records referred to either do not exist or were beyond the scope of the refined AIE request in the opinion of the person dealing with the AIE request”.
51. Separate to the above, in its submissions to this Office, the Department commented generally:
“[a]s the scope of each part of the request for records considered under reference AIE-078-2021 was specifically related to the assessment of the two foreshore licence applications identified above and a full copy of these files were released save for redaction of some personal information, it is considered that the records released fully satisfy the request.” (my emphasis).
52. In light of this statement, this Office’s Investigator noted to the Department that AIE-078-2021 refers, at the outset, to “records relating to licence applications to undertake surveys and data collection for an offshore wind farm in the vicinity of the Kish and Bray Banks granted to the Kish Consortium in August 2000, as follows: i. Geophysical and geotechnical investigations on the Bray Bank (KIS53_7A) ii. Geophysical and geotechnical investigations on the Kish Bank (KIS53_7)" and then, at parts 1 to 6, sets out the specific type of information sought.
53. The Investigator explained that while it appeared to her that parts 1, 2, 4, and 5 arguably concerned information relating to the applications and their assessment, it seemed to her that parts 3 and 6 concerned information relating to the licences granted on foot of the applications and are not confined to the assessment of the applications. She outlined that, in the circumstances, it was her view that the scope appellant’s request, in particular parts 3 and 6, would include information other than the information on the files that were part released. She sought the Department’s views in this regard.
54. In response, the Department stated that part 3 of the request refers to the public notice and public consultation process, required under section 19 of the Foreshore Act 1933, as amended, which forms part of the application process. It stated that the application process had not concluded at this stage in the process. It stated that, similarly, part 6 of the request refers to the submission to the Minister who has, under section 3 of the Foreshore Act 1993, as amended, the powers to grant licences of the foreshore.
AIE-079-2021
55. Regarding its records management practices, the Department again referred to the 2018 draft copy of its Record Management Guidelines and reiterated the detail provided in that regard (see above).
56. The Department noted that it considered the appellant’s request to relate to the designation process for SPAs and SCAs (also known as Natura 2000 sites). It explained that the designation process is highly iterative and depends on the scale of the designations, the potential number of sites, the habitats and species, and the scale and scope of the scientific information and analysis required. It stated that a range of records may be prepared or commissioned e.g. scientific surveys, the collation of data, modelling and other types of analysis, justification documents, and correspondence to relevant Principal Officers (in the Scientific Unit and Designations Unit) and the Minister. The Department stated that during the relevant time period there was no formal intention to designate Kish or Bray bank.
57. The Department stated that searches were carried out in both the Scientific Unit and Designations Unit. It explained that no other sections were considered relevant to the request, as they are not involved in the designations process.
58. The Department stated that electronic files were searched using terms such as “Kish Bank”, “Bray Bank”, and “Kish and Bray Bank”. Regarding the Scientific Unit, the Department noted that its G:Drive (shared drive), to which all unit staff have access to and use to store electronic files, was the primary location searched. It stated that within this drive, the marine folder and the individual folders of relevant staff were searched. It also noted that the research folders of two staff members and the SAC designations and planning folders of another staff member were searched. Regarding the Designations Unit, the Department stated that folders in the G:Drive relating to designations, special areas of conservation, and its official files database were searched. In addition to the electronic searches carried out, it also stated that a manual search was conducted on all files in one particular folder relating to SAC marine sites.
59. The Department stated that hard copy files were searched by sight. Regarding the Scientific Unit, it stated that the hard copy files searched were located in the Dublin and Cork offices. It explained that no potentially relevant hard copy files would be held in the Galway Office. It noted that in Dublin, the hard copy files concerned were those relating to a retired Principal Officer and they were checked for relevant file names. It stated that in Cork, the hard copy files concerned were those that had been passed from departing marine staff to incoming staff and they were checked manually. In respect of the Designations Unit, the Department stated that no hard copy files were searched, as the Kish and Bray banks were not put forward for designation as SACs or SPAs at the time and accordingly, none were created.
60. The Department stated that it is always possible that files have been misfiled or misplaced. It explained that, accordingly, broad search terms were used to search the electronic files, the entire marine folder in the Scientific Unit shared drive (not just discrete folders about sandbanks or designations) was searched, and a visual scan for relevant terms in hard copy file names was undertaken.
61. The Department stated that all relevant officials in the Scientific Unit and Designations Unit were consulted and asked to search their records. The Department noted that these officials included one current Scientific Unit employee and three current Designations Unit employees. The Department stated that the three current Designations Unit employees were included, even though it was anticipated that they would not hold any relevant information, as the Kish and Bray banks had not been proposed for designation at the time and no public notification to that effect could have occurred, thus making it unlikely that the Designations Unit would have received any associated correspondence. The Department also stated that the archived emails of three former Scientific Unit employees and of the current Scientific Unit employee were searched. The Department stated that the archived emails of former Designations Unit employees were not searched.
62. The Department stated that the current Scientific Unit employee is the only remaining member of staff that was involved during the relevant time period, when he was Marine Grade III. It noted that he had provided the following comments:
“…I interpret this as a request for information related to any representation from developers of a Kish and/or Bray Bank windfarm (or people acting in their interest) related to the potential designation of Kish and/or Bray Bank (and possibly areas adjacent) as a Natura site(s).
Kish & Bray Banks were considered as part of a wider analysis of sandbanks in Ireland and an intention to designate Natura sites before 2012.There are documents and analyses that reference Kish & Bray Banks as part of these processes but they are outside the terms of the request (as I interpret it).Ultimately Kish or Bray Banks were not judged to be suitable sites for designation after the rounds of analyses and data collection that occurred.That decision was made from a nature conservation perspective using the criteria in European Commission Guidance on designating Natura sites.
During a typical Natura designation process the Department would publish an intention to designate a new site and would invite submissions or objections to that notification within a specified time period.However, since there was no formal intention to designate Kish or Bray Bank as Special Areas of Conservation then there would be no formal submissions from any interested parties.I am not aware of any informal or otherwise communication from any consortium.
This section would routinely comment on development applications in the marine environment.A search of these records revealed some references to Kish/Bray Banks but they would again be outside of the request terms.For information they include the following:
Since these are foreshore licences that section of the Department would be able to provide more complete records.”
63. In her submissions to this Office, the appellant made a number of contentions regarding the information she believed should exist. This Office provided a summary of those contentions to the Department and asked it to respond. I have further summarised the appellant’s contentions and set out the Department’s responses below:
1. The appellant contended that two documents a “sand bank justification document” and a document comprising a number a number of sandbank maps, supported her view that relevant information should exist. In response, the Department stated that it understood such documents to be outside the scope of AIE-079-2021 as neither were “on the part of the Bray and Kish Banks consortium/developers to the Minister…or on behalf of the consortium developers.”
2. The appellant contended that relevant records should exist, in particular those relating to consultants, other departments, other state agencies or lobbying interests. She submitted that the developer and its agents were instructed to carry out Dalkey, Kish, and Bray sandbanks site surveys relating to possible designation as SACs. In response, the Department stated that no such records (if they exist) would come within the scope of the request as they would concern instructions from NPWS to other parties, and the request concerns records to NPWS/the Minister. Notwithstanding its view, the Department stated that the NPWS did not instruct any of these parties to carry out surveys of these banks for the purposes of the designation process, they would have been in the context of wind energy development, which it stated is a separate process.
3. The appellant contended that in January 2012 consultants had prepared an environmental impact statement (EIS) which stated that “Ireland has already identified sandbanks for SAC designation which do not include the Kish and Bray banks. No offshore Special Protection Areas (SPAs) have been designated or proposed elsewhere in Ireland, including the Kish/Bray bank area, for marine birds listed on Annex I EU Birds Directive”. She contended that it is unfeasible that the consultants “would have been able to make this statement without checking at that time – or consulting – with NPWS as to their intentions in reference to sites that were NPWS candidate SACs or SPAs”. She contended that Kish and Bray sandbanks were on a list of candidate SACs that was submitted to the Minister in April 2012. In response, the Department stated that this contention does not state or prove that the Department had received any “records or details of any briefs or submissions…on the part of the Bray and Kish Banks consortium/developers to the Minister…on behalf of the consortium developers.” Rather, it stated that it points to the Department potentially communicating information to the consultants. It suggested that that no such records (if they exist) would come within the scope of AIE-079-2021. The Department further noted that if the named consultants had contacted NPWS in the context of their EIS, it also considered such records to be outside of scope of the request at issue on the basis that they relate to a process separate to designation. It noted that, for the purposes of clarity, that the NPWS had not established whether any such records to or from the named consultants did, in fact, exist.
4. The appellant contended that records should exist regarding how the consultants could ascertain that the Kish and Bray sandbanks were not on a future list of candidate SACs (as she believed they were until late 2012/early 2013). In response, the Department referred to its answer at point 3 above.
5. The appellant contended that relevant records should exist of communications between the developer and its agents and a named staff member, who, she stated, drew up reports and was involved with the NPWS Designations Unit, meetings with offshore/renewable wind project developers or their agents, meetings with the Minister, and meetings with the Marine Institute. In response the Department again stated that it understood discussions about wind energy development to be outside the scope of the request.
6. The appellant contended that relevant records should exist of communications, emails, meetings, minutes of meetings, internal circulars, presentations, memos, documents, or phone records etc. regarding the Kish and Bray banks development and/or proposed designation as SAC/SPAs. In response, the Department noted that the NPWS considered records concerning the potential development of the banks to be outside the scope of the request as it is a separate process, and, on the designation process specifically, no records were found that were “on the part of the Bray and Kish Banks consortium/developers to the Minister” or “…on behalf of the consortium developers”.
7. The appellant contended that relevant records should exist of communications between NPWS staff and the developers or their agents. In response, the Department noted that the NPWS considered records concerning the potential development of the banks to be outside the scope of the request as it is a separate process, and, on the designation process specifically, no records were found that were “on the part of the Bray and Kish Banks consortium/developers to the Minister” or “…on behalf of the consortium developers”.
8. The appellant contended that relevant records should exist of records regarding the proposed designation of Kish and Bray banks between NPWS and the developers. In response, the Department noted that the NPWS considered records concerning the potential development of the banks to be outside the scope of the request as it is a separate process, and, on the designation process specifically, no records were found that were “on the part of the Bray and Kish Banks consortium/developers to the Minister” or “…on behalf of the consortium developers”.
9. The appellant contended that relevant records should exist between NPWS and Minister Simon Coveney, Minister Jimmy Deenihan, or the chief executive of the Marine Institute in relation to Kish and Bray sandbanks and proposed investigations or development and/or proposed SAC/SPA status. She referred to a particular internet article. In response, the Department referred to the searches carried out by NPWS using “kish”, “bray” etc. and that no relevant records were found. It noted that the memo referred to in the internet article, was not set “on behalf of” the consortium etc., so was not considered to be within the scope of AIE-079-2021.
10. The appellant contended generally that records should exist for a number of other reasons, including:
i. There is a report entitled “Bray Offshore Wind Natura Impact Statement Feb 2013” which indicates that direct consultations/meetings with NPWS on the project and investigations, including regarding Natura 2000 sites and the Kish and Bray banks, did take place. In response, the Department stated that discussions on wind energy developments were considered to be outside the scope of the request.
ii. There is correspondence from named consultants regarding the Dublin Array Project dated 11 August 2011 to the Development Applications Unit, inviting the Department to make comments. In response, the Department stated that discussions on wind energy developments were considered to be outside the scope of the request.
iii. The Developers were obliged to be in contact with NPWS in relation to investigations and a letter of consultation was sent to the director of planning. In response, the Department stated that discussions on wind energy developments were considered to be outside the scope of the request.
iv. The records sought are part of routine consultations with NPWS throughout 1999-2012 as required under the guidelines set out for intending developers in the May 2001 document “Offshore Electricity Generation Stations – Note for Intending Developers”. In response, the Department stated that discussions on wind energy developments were considered to be outside the scope of the request.
v. There is a 2012 NPWS document relating to the designation of sandbanks, which sets out that the Kish/Bray banks were tagged as proposed SACs to go forward to the EU for designation as SAC submerged sandbanks covered by water all of the time. There is also another NPWS document which states that previous designation advice, which included the Kish Bank, was formulated on the standard approach of achieving designation of 20-60% of the national reserve. In response, the Department stated that the justification document was considered to be outside the scope of AIE-079-2021 as it was not “on the part of the Bray and Kish Banks consortium/developers to the Minister…or on behalf of the consortium developers.”
vi. A map used in the abovementioned internet article. In response, the Department stated that there are a number of images in the internet article that include maps, however none of these fall within the scope of AIE-079-2021, as they were not received or created “on the part of the Bray and Kish Banks consortium/developers to the Minister…or on behalf of the consortium developers.
vii. There were communications between NPWS and the OREDP team in relation to the removal of a reference to the Kish SAC from an OREDP NIS Document. In response, the Department stated that this record does not come within the scope of the request, as it concerns a communication to another Minister’s Department. It stated that the request at issue only concerned information “to the relevant authority”, which was understood as NPWS.
64. During the course of the review, this Office’s Investigator asked the Department a number of further queries relating to both AIE-078-2021 (in particular parts 3 and 6) and AIE-079-2021. It seems to me that the Foreshore Section did not respond to these queries in respect of AIE-078-2021, however the Scientific Unit and Designations Unit did respond in respect of AIE-079-2021. A summary of these queries and the responses received are provided below:
1. This Office asked the Department to provide further detail relating to the decision not to propose Kish and Bray banks as an SAC or SPA and the steps taken to reach that decision. In response, the Department stated that the decision not to propose the Kish and Bray banks as an SAC was reached in late 2012 (November and December). The Department noted again that the process involved is highly iterative and involves: the collection, compilation and analysis of relevant scientific information to determine appropriate sites to classify as SACs in accordance with Annex III of the Habitats Directive; the preparation of a justification document/recommendation by the Scientific Unit for its Principal Officer; a decision by the Scientific Unit Principal Officer on that recommendation; a recommendation by that Scientific Unit Principal Officer to the Designations Unit Principal Officer; and potentially memos with recommendations to the Minister for approval to proceed at various stages of the discussions. The Department stated that the process for considering SPA designations in the Irish Sea has not yet concluded, and had not commenced during the timeframe of the request. The Department stated that any documents that included the search terms, would have been located. The Department stated that it considered such documents to be outside the scope of AIE-079-2021 as they were not “on the part of the Bray and Kish Banks Consortium/developers to the Minister” nor were such records “by any civil servant on behalf of the consortium developers”, as requested.
2. This Office asked the Department whether documents relating to the analyses and data collection and relating to the assessment undertaken using the European Commission criteria in its guidance on designating sites would have been included within the searches carried out. The Department confirmed that such documents should have been produced if they included the search terms used. It noted, however, that they would have been considered to be outside the scope of the request, as they were not “on the part of the Bray and Kish Banks Consortium/developers to the Minister” nor were they “by any civil servant or on behalf of the consortium developers”, as requested.
3. This Office noted the Department’s explanation that as there was no formal intention to designate Kish or Bray Bank and, as such, no formal submissions received. However, it asked whether there could have been any informal submissions prior to the decision not to designate. The Department stated that it is theoretically possible, however, unlikely. It noted that any such records, if they existed, would have been identified if they included the search terms used. It stated that no relevant hard copies were found. The Department stated that it would not consider comments or submissions made by other Departments or Government agencies to be on behalf of developers, unless explicitly stated.
4. This Office noted that both the appellant and the Department had referred to records which had been released to an environmental advocacy group and asked the Department why it did not consider such records to fall within the scope of AIE-079-2021. The Department stated that although the appellant had not explicitly identified the records being referred to, it assumed them to be those released in 2021 on foot of AIE and FOI requests from a particular NGO, in relation to the designations process generally, the designation of Blackwater Bank and Hempton’s Turbot Bank SACs, and the commissioning of a survey of the Codling Bank. The Department stated that, being aware of the documents released under in response to other AIE and FOI requests, and its understanding of the scope of AIE-079-2021, it is of the view that there is no overlap between those released to the other party and those requested by the appellant. The Department stated that it reviewed the documents released under those other requests for the purposes of this appeal, and confirmed that it considers them to be outside the scope of AIE-079-2021.
5. This Office noted that the Department stated that it has a range of records on file concerning the designation of sandbank sites generally. The Department outlined that it did not consider any such records to fall within the scope of the request at issue as none of these were “on the part of the Bray and Kish Banks Consortium/developers to the Minister” or if made by a civil servant explicitly stated as being “on behalf of the consortium developers”.
6. This Office noted that the Department stated that Kish and Bray banks were considered as part of a wider analysis of sandbanks in Ireland and an intention to designate Natura sites before 2012 and there are documents and analyses that reference Kish and Bray banks as part of these processes. The Department again outlined that it did not consider any such records to fall within the scope of the request at issue as none of these were “on the part of the Bray and Kish Banks Consortium/developers to the Minister” or if made by a civil servant explicitly stated as being “on behalf of the consortium developers”.
7. This Office noted the Department’s comments that NPWS routinely comments on development applications in the marine environment and a search of these revealed some references to Kish and Bray banks. The Department noted that it did not consider such records to fall within the scope of AIE-079-2021 and referred to the comments of the current employee of the Scientific Unit, which are set out above.
65. The general thrust of the Department’s position is that there appears to be a misunderstanding regarding the scope of AIE-079-2021. The Department stated that it understood the request to include records concerning the designation process of SACs and SPAs (Natura 2000 sites). It noted that the Minister and NPWS are the relevant authority for the designation of SPAs and SACs and it was understood that only correspondence to NPWS was being sought.
66. The Department stated that the designation process for SACs and SPAs does not include consultations on wind energy development applications or associated licences; these are entirely separate processes, notwithstanding the fact that the latter must take account of the former. Thus, the Department outlined, it considered all documentation concerning such wind energy development or licence applications to be outside the scope of the request. The Department stated that from the summary of the appellant’s contentions provided by this Office’s Investigator, that it became clear that the appellant intended such documentation to be within scope. However, it is the Department’s view that such an intention was not explicitly expressed in the appellant’s wording and that it understood it to relate entirely to the site designation process.
67. The Department also highlighted that the request states that the information sought concerns “[r]ecords or details of any briefs or submissions, meetings or notes on the part of the Bray and Kish banks consortium/developers or their agent or representative, or by any civil servant on behalf of the consortium /developers to the Minister” (the Department’s emphasis). The Department outlined that, accordingly, it searched for records that concerned the designation process, within which it stated that they were on the behalf or part of the parties specified, or that came directly from such parties. It stated that it did not search for records concerning wind energy developments or licence applications in the area of the Kish and Bray banks as, as it had explained, such records were not specified in the request.
68. In addition to its responses above, Department noted that it had located one record that may have been relevant to the appellant’s request, however, as it was from 2013, and the timeframe for the request was 2004 to 2012, it had not considered it further. It is open to the appellant to make a fresh request to the Department for that document, should she wish to do so.
69. In light of comments included in the appellant’s contentions, it is important to note that the scope of this appeal cannot be extended to include records which do not fall within the scope of the information sought under AIE-078-2021 and AIE-079-2021, as set out in the “Scope of Review” section above.
70. However, notwithstanding that some of the information referred to by the appellant in her contentions may fall outside the scope of AIE-078-2021, it is unfortunate that the Department did not respond fully to those contentions, provide specific detail regarding the information which it considered to fall outside the scope of AIE-078-2021, or adequately address this Office’s queries in that regard.
71. It is unclear to me why the Department considers part 3 of AIE-078-2021, wherein the appellant sought access to “Records referring to reports on the marine habitat or local fauna around the Kish and Bray banks or records relating to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna either submitted by the developers or requested from the developers by the Minister’s department or body under his department, in relation to these foreshore licences for site investigations for an offshore windfarm at Kish and Bray banks” is confined to the process set out in section 19 of the Foreshore Act 1933, as amended, which, I understand addresses matters prior to the granting of the licence (e.g. applications to the Minister, the procedure regarding certain applications, matters to be given regard to by the Minister when considering certain applications etc). It would appear to me that any and all records regarding the habitat and fauna submitted by/requested from the developers regardless of whether they were submitted prior to or after the granting of the licence would fall within the scope of AIE-078-2021. The Department has not adequately explained why this would not be the case.
72. It is also unclear to me why the Department considers part 6 of the appellant’s request wherein she sought access to “Records that give details of correspondence to the Department from Dúchas the Heritage Service, from the Department to Dúchas or records of correspondence between the licencee and the Development Applications Unit of Dúchas held by the [D]epartment regarding specific environmental information (for example on marine biodiversity and habitats in the Kish and Bray banks area, the protection of or designation of areas of protection for marine habitats, or on seabirds and the protection or making of designated areas of protection for same in this area) pursuant to the awarding of these Foreshore Licences to inform the proposed development of an offshore windfarm at Kish and Bray banks” solely relates to the submission made to the Minister with regard to the granting of the licence (section 3 of the Foreshore Act 1993, as amended, sets out the powers to grant licences of the foreshore) and does not include any subsequent or related correspondence between the Department and NPWS (Dúchas) regarding the marine biodiversity, habitats etc.
73. While I accept that searches in relation to AIE-078-2021 were carried out and some of the information referred to by the appellant in her contentions may fall outside the scope of AIE-078-2021, in circumstances where the Department does not appear to have considered any information subsequent to the assessment and the awarding of the licences to come within the scope of AIE-078-2021, it is my view that the Department took an unduly narrow interpretation of AIE-078-2021.
74. Additionally, while I also accept that searches in relation to AIE-079-2021 were carried out, acknowledge the responses provided by the Department regarding the appellant’s contentions and, agree that AIE-079-2021 was, indeed confined to records on the part/behalf of the developers on the designation of SACs, SPAs, or Natura 2000 sites in the Kish and Bray bank area during the period of 2004 to 2012, I do not agree that AIE-079-2021 was confined to the formal designation process. In my view, there is no evidence to suggest this from the wording of the appellant’s request.
75. Accordingly, notwithstanding that some of the information referred to by the appellant in her contentions may fall outside the scope of AIE-079-2021, from the details provided by the Department it appears that information/comments relating to the designation of sites in the Kish and Bray bank on the part/behalf of the developers may have arisen in contexts other than the formal designation process. Accordingly, it also appears that the Department took an unduly narrow interpretation of AIE-079-2021.
76. In all the circumstances, I am not in a position to find that the Department carried out all reasonable searches in an effort to ascertain whereabouts of all relevant records coming within the scope of AIE-078-2021 and AIE-079-2021. Accordingly, I cannot find that article 7(5) applies in this case.
77. I consider that the most appropriate course of action to take at this stage is to annul the decision of the Department to refuse access to additional environmental information coming within the scope of AIE-078-2021 and AIE-079-2021, the effect of which is that the Department must consider the appellant’s request for such information afresh and make a new, first instance decision in accordance with the provisions of the AIE Regulations. Before processing the request afresh, it may be useful for the parties to agree on the precise nature and time period of the records sought apart from those already identified. The Department should also bear in mind that it is responsible for ensuring that any subsequent searches for relevant information regarding both AIE-078-2021 and AIE-079-2021 extend to all parts of the Department that might hold relevant records. Additionally, in the event that the Department wishes to refuse information under article 8(a)(i), subject to article 10, of the AIE Regulations, it may also wish to confirm with the appellant whether she is seeking that information.
78. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision in this case. I direct the Department to release the majority of the redacted information and to undertake a fresh decision making process in respect of the remainder, as described in the body of the decision. I also direct the Department to undertake a fresh decision making process in respect of the appellant’s request for additional relevant environmental information.
79. 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 Commissioner for Environmental Information