Decision
Ms D and Department of Housing, Local Government and Heritage
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-157802-M1Q4T9 & OCE-157799-C1Q4L8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-157802-M1Q4T9 & OCE-157799-C1Q4L8
Published on
The Commissioner found that the Department was not justified in refusing the information sought and annulled the internal review decision of each appeal. The Department should provide the appellant with a new internal review decision in respect of each request.
11 September 2025
1. This decision relates to two appeals received by this Office on 28 March 2025, Appeal A (OCE-157802-M1Q4T9) and Appeal B (OCE-157799-C1Q4L8). Both appeals were submitted by the same appellant and concern access to information regarding wind energy from the Department of Housing, Local Government and Heritage.
2. On 5 December 2024 the appellant made an AIE request stating:
“1. I request access to all records related to the Ministerial decision made sometime in 2020 'not to proceed' with the draft 2019 wind energy development guidelines. I would expect such records to include but not limited to a Ministerial decision report, communication emails, reports, letters, briefing notes and reports.
2. I request access to all records, communications between the Department of Housing and the Department of Health and / or the HSE relating to wind turbines, during the period 1st January 2019 to present day”.
3. On 16 December 2024 the Department sought to invoke article 9(2)(a) and 9(2)(b) with respect to the request and proposed the below refinements, stating:
“By way of assistance I wish to invite you to make a more specific request. This department currently has in excess of 80 business units, with a Principal Officer appointed to each, who will all be required to carry out a search for records in order to process your request. In addition the timeline of your request will need to be refined to a more manageable period. In order to facilitate an efficient search and retrieval of records can you refine your request to:
all correspondence between officers of Principal Officer and above within the Planning Division of the Department of Housing, Local Government and Heritage, and the Department of Health or HSE, as well as any submission made by the Department of Health or HSE in relation to the 2019 public consultation on the draft 2019 wind energy development guideline , during the period Jan 2019 and Dec 2021”.
4. On December 17, 2024, the appellant confirmed their intention to make some refinements, stating:
“I wish to amend Part 2 of my request as follows:
2. Request for Records and Correspondence
I request access to all records, including all correspondence between officers of Higher Executive Officer level and above within the Planning Division of the Department of Housing, Local Government, and Heritage, and the Department of Health or HSE. This includes any submissions made by the Department of Health or HSE regarding the 2019 public consultation on the draft 2019 Wind Energy Development Guidelines, covering the period from January 2019 to December 2024.
I must maintain the longer time frame as it is essential for understanding the full scope of considerations regarding public health and environmental protections”.
5. On 13 February 2025, after the appellant made further enquires as to the status of the request, the Department proposed to refine it further and offered the following by way of revised text:
“1. The following specified records related to the Ministerial decision made sometime in 2020 'not to proceed' with the draft 2019 wind energy development guidelines.
i. Any relevant Ministerial submission/decision report,
ii. Any relevant supporting report
iii. Any relevant briefing notes
iv. Any relevant communications
2. All correspondence between the Department of Health or HSE relating to wind energy, in particular the wind energy development guidelines; this includes any submissions made by the Department of Health or HSE regarding the 2019 public consultation on the draft 2019 Wind Energy Development Guidelines”.
6. The appellant was not agreeable to the suggested refinement, requesting an internal review, and on 28 March 2025 the Department issued its internal review decision based on the original wording of the request, refusing access to the information on the basis of 9(2)(a) and 9(2)(b) of the AIE Regulations, stating:
“Having reviewed the text of the request, I have determined that the original request is too broadly drafted such that it is read to apply to all units within the Department of Housing, Local Government and Heritage, of which there are over 80, and would require all officials in the Department to carry out a search for any ‘Ministerial decision reports, communication emails, reports, letters, briefing notes and reports,’ which in itself, as per the wording of the request, is not an exhaustive list, in respect of both the Ministerial decision not to proceed with the draft 2019 Wind Energy Guidelines but also any record in any context regarding communication between Department officials and officials in the Department of Health in respect of wind turbines. In the first instance therefore, I am refusing to make the information requested available as the request is manifestly unreasonable having regard to the volume and range of information sought in accordance with Article 9(2)(a). I have also taken into account attempts by both parties to try to reformulate the request into a more reasonable request in accordance with Article 7(8). As these attempts were not successful I must determine that the request remains formulated in too general a manner and should therefore also be refused under Article 9(2)(b)”.
7. On 5 December 2024 the appellant made an AIE request stating:
“I request access to all records relating to the joint submission (13 acousticians) received in February 2020, link provided below.
1. I expect such records to include but not limited to communication emails, letters, briefing notes and reports.
2.The submission makes reference to a meeting between the Department in their submission “We received a response from Department of Housing, Planning and Local Government (DHPLG) inviting four members of the group to a meeting on the 25th February 2020” I am seeking access to the outcomes of receiving the joint submission”.
8. On 16 December 2024 the Department sought to invoke article 9(2)(a) and 9(2)(b) with respect to the request and proposed the below refinements, stating;
“For the purposes of processing your request more efficiently and to reduce any potential search and retrieval fees that might be incurred, can you please provide sufficient particulars in relation to:
Part 1 of your request as follows:
With regards to emails and letters, can you please specify who this communication is between? Are you aware of any particular communications?
With regards to briefing notes and reports, can you refine this to those relating specifically to the analysis of the submission?
Part 2 of your request as follows:
Can this be refined to any analysis report outlining the considerations of the joint submission?”.
9. Some aspects of the proposed refinement were accepted by the appellant, who stated:
“1. Scope of Records: I expect the records to include, but not be limited to, communications such as emails, letters, briefing notes, reports, and any other documentation pertaining to this submission. In response to your earlier question, I confirm that I am aware of certain specific communications. However, my request is for the complete set of records. Narrowing the scope of this request would undermine its intent, as I am seeking comprehensive access to all relevant materials.
2. Clarification Regarding Specific Reports: In response to your query, I cannot refine my request to solely focus on "any analysis report outlining the considerations of the joint submission." While I would welcome access to such a report, my request remains for all records related to the consequences and actions stemming from the receipt of this joint submission”.
10. In February 2025, after the appellant sought an update on the request, the Department suggested further refinement of same, proposing the below text:
“1. The following specified records related to the joint submission received in February 2020
i. Any relevant briefing notes referencing this submission
ii. Any report referencing this submission;
iii. Any summery of this submission;
iv. Any correspondence dealing with this submission;
2. The following specified records relating to the outcome of joint submission received in February 2020
i. Any relevant briefing notes relating to actions to be taken following on from receipt of this submission;
ii. Any report referencing actions to be taken following on from receipt of this submission;
iii. Any summery of actions to be taken following on from receipt of this submission;”
iv. Any correspondence referencing actions to be taken following on from receipt of this submission”.
11. The appellant was not agreeable to the refinement and requested an internal review. On 28 March 2025, the Department issued an internal review decision refusing access to the information on the basis of 9(2)(a) and 9(2)(b) of the AIE Regulations, stating:
“Having reviewed the text I have determined that the original request is too broadly drafted such that it is read to apply to all units within the Department of Housing, Local Government and Heritage, of which there are over 80, and would require all officials in the Department to carry out a search for any ‘communication emails, letters, briefing notes and reports’, which in itself, as per the wording of the request, is not an exhaustive list. In the first instance therefore, I am refusing to make the information requested available as the request is manifestly unreasonable having regard to the volume and range of information sought in accordance with Article 9(2)(a). I have also taken into account attempts by both parties to try to reformulate the request into a more reasonable request in accordance with Article 7(8). As these attempts were not successful I must determine that the request remains formulated in too general a manner and should therefore also be refused under Article 9(2)(b)”.
12. I am directed by the Commissioner 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 by the Department of Housing, Local Government and Heritage. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
13. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s decision and to affirm, annul or vary it. As such, this review is concerned with whether the Department was justified in its refusal of the information sought under articles 9(2)(a) and 9(2)(b) of the AIE Regulations.
14. The Investigator assigned to the appeal sought focussed submissions from the Department with respect to its reliance 9(2)(a) in relation to the Department’s contention that refinement was necessary in both appeals as it required personnel from all 80 units of the Department to be contacted in a‘department-wide response’, which would cause‘a significant administrative burden’.
15. In its response, dated 14 August 2025, the Department states:
“The responsibility for the review of the Wind Energy Development Guidelines has been entirely within the planning division of the Department of Housing, Local Government and Heritage with the exception of some matters relating to noise which are with the Department of Climate, Energy and the Environment. No other division within the Department would hold records relevant to these requests. Specifically, this responsibility has only ever been with two units, until January 2025 the Planning Policy and Legislation Unit (PPL) and following a restructuring of the wider planning division the remit was moved to the newly constituted Climate and Environmental Planning Policy Unit (CEPP). All records held regarding the WEDGs became the responsibility of this unit and staff associated with the WEDGs also moved to CEPP.
While the Climate and Environment Planning Policy Unit would be very confident that it holds all the relevant records, in our proposed refinement requests we also included the National Regional and Urban Planning Unit (NRUP), subsequently renamed National Strategic Planning, who are responsible for the provision of professional planning advice within the Department on the basis the work of this unit tends to cover a wide variety of matters relating planning and the unit often offers technical support to other planning units. Other units within the planning division have defined roles which would not relate to the review of the WEDGs. We also proposed including the Assistant Secretary for Planning at the Department, the office of the Minister and the office of the Minister of State with responsibility for Planning on the basis that they have overall responsibly for all planning matters including the WEDGs.”
16. Further to the above, the Department also advised that some of the information requested in the appeals has since been released to the appellant by way of a separate AIE request, and, that a further AIE request was currently being considered by the Department which would have further implications with respect to a duplication of records within scope.
17. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of article 4(3)(b) of the Aarhus Convention.
18. Article 9(2)(b) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request remains formulated in too general a manner, taking into account article 7(8). Article 9(2)(b) seeks to transpose article 4(1)(c) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is formulated in too general a manner, taking into account article 3(3), and, in turn, is based on part of article 4(3)(b) of the Aarhus Convention.
19. Articles 9(2)(a) and 9(2)(b) must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. 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 7(4)(c) of the Regulations requires a public authority to specify the reasons for refusal of a request.
20. The Minister’s Guidance at paragraph 12.8 states the following:
“Article 9[(2) …] clarifies that a public authority may refuse to make information available if the request is considered unreasonable due to the range of material sought, if the request is too general or if the material requested is not yet completed. Public authorities are requested to invoke these grounds for refusal sparingly, and to assist the applicant (to reformulate a request, for example) as appropriate.”
21. In the decisions provided to the appellant, the Department referred to the requests as“manifestly unreasonable having regard to the volume and range of information sought in accordance with Article 9(2)(a)” and contended progressing the requests to completion would“place a significant administrative burden on the Climate and Environmental Planning Policy (CEPP) section, which is the section responsible for administering this request, in particular. It would involve contacting every official in the Department, ensuring every official has replied and also organising a trawl of the records of staff no longer with the Department over a significant time period. If each search took 30 minutes per unit, it would take approximately 40 hours of the wider Department’s time, not accounting the time commitment of the CEPP section. Such an endeavour should be considered in the context of the work on the review of the Wind Energy Development Guidelines only involving a finite number of sections, which informed the Department’s suggested refinement”.
22. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request.
23. It is unclear to me the basis on which the Department have invoked reliance on article 9(2)(a) in relation to its contention that the requests necessitate a‘department-wide response’ encompassing 80 units, whilst simultaneously affirming, as outlined in paragraph 15, the small number of units it considers would hold information pertaining to the requests.
24. Article 7(5) of the AIE Regulations obliges public authorities to take reasonable steps to identify information which may be held by or for them. In my view, that the Department can readily specify the units which it believes hold the information sought, represents an adequate and judicious response by a public authority to undertake searches in locations where it reasonably believes information may be held. In simple terms, if the Department is ‘confident’ that information within the scope of the requests would only be held by the small number of units it references, it is reasonable that it undertakes searches to identify relevant records in these units only. It would not be reasonable, or necessary, for the Department to carry out a search of all 80 units in the Department, and therefore I cannot accept that the request would be manifestly unreasonable.
25. Further, that the Department has identified and released some of the information sought in these appeals by means of a separate completed AIE request and is considering the release of further duplicated information by way of an AIE request actively being considered, would appear to support the view that the requests in this appeal cannot be considered to be manifestly unreasonable.
26. Accordingly, I do not accept that the requests in this appeal are ‘manifestly unreasonable’ and find the threshold of article 9(2)(a) has not been met.
27. In submissions to this Office, the Department contend that article 9(2)(b) is invoked in Appeal A as“the requester did not request an exhaustive or specific list of records, or types of records, in relation to this request. Furthermore, the request, as written, would have applied to any record regarding communications between the Department and the Department of Health relating to wind turbines” and in Appeal B because“the requester did not request an exhaustive or specific list of records, or types of records, in relation to this request. Further, the request refers to “outcomes” of receiving the joint submission, without clarifying what is meant in this regard”.
28. When considering whether the appellant’s request remains formulated in too general a manner, it must be borne in mind that Recital 16 of the AIE Directive provides that“the right to information means that disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases” . Article 10(4) of the Regulations provides that the grounds for refusal of a request must be interpreted on a restrictive basis having regard to the public interest served by disclosure. I therefore consider that the scheme of the AIE Regulations and the Directive make it clear that there is a presumption in favour of the release of environmental information and that it is for the public authority seeking to withhold information to establish that it is entitled to do so having regard to the grounds for refusal set out in the Regulations.
29. In my view the Department has relied on very limited reasoning in its reliance on article 9(2)(b). It appears to me that the appellant’s requests cannot reasonably be described as formulated “in too general a manner.” In my view, the requests have been worded in such a manner so as to limit its scope to a specific category of environmental information. In both appeals the appellant has noted what they expect the records to be in the form of which gives the information being sought further context. The AIE Regulations do not require an appellant to give an ‘exhaustive list’ as the Department has contended, further this undertaking would not be feasible as they are not privy to an exhaustive list of what information and records are held by the Department. It is also clear that the Department were in a position to identify two specific units within the Department which are likely to hold information in relation to the request.
30. The Department’s contention that Appeal A would have“applied to any record regarding communications between the Department and the Department of Health relating to wind turbines” does not in my view render it ‘too general a manner’ given the specific time frame given and, the fact that the proposed refinement of the request proposed by the Department would also appear to imply this contention. The Department have also not indicated that there would be a huge volume of relevant communications, such that might render the request manifestly unreasonable and/or too general.
31. Similarly, the Department’s contention that 9(2)(b) is invoked in Appeal B because the appellant failed to clarify what is meant by ‘outcomes’ of the joint submission, does not meet the threshold for protection from this article. In my view what is meant by the appellant here can be reasonably understood as information and records resulting from any actions taken by the Department after receiving the submission.
32. Article 9(2)(b) of the AIE Regulations and article 4(1)(c) of the AIE Directive respectively require that article 7(8) of the AIE Regulations and article 3(3) of the AIE Directive be taken into account. Article 7(8) of the AIE Regulations provides that where a request is made by the applicant in too general a manner, the public authority shall, as soon as possible and at the latest within one month of 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. Article 3(3) of the AIE Directive provides that if a request is formulated in too general a manner, the public authority shall as soon as possible, and at the latest within one month, ask the applicant to specify the request and shall assist the applicant in doing so e.g. by providing information on the use of public registers.
33. I note that in the case of both appeals the appellant did, upon request of the Department, refine in-part, the wording of their requests in response to the Department’s first suggested refinements, ultimately not being agreeable to the second proposed refinements.
34. Notwithstanding this, for reasons outlined in paragraphs 27-31 it is my view that the requests were not formulated in too general a manner, and accordingly, I find therefore, that the Department was not justified in its decision to refuse the appellant’s request under article 9(2)(b) of the AIE Regulations.
35. Having found neither article 9(2)(a) nor article 9(2)(b) to apply, it is not necessary for me to consider the public interest balancing exercise provided for at article 10(3) of the AIE Regulations.
36. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decisions to refuse access to information relating to the appeals as referenced above under article 9(2)(a) and/or 9(2)(b) of the AIE Regulations. The Department should now provide the appellant with a new internal review decision.
37. 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