Decision
Mr A and Mr Ken Foxe and DAA Public Limited Company
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-146446-Z8R7J4 and OCE-146437-P0L8D6
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-146446-Z8R7J4 and OCE-146437-P0L8D6
Published on
Whether DAA were justified in refusing the information requested under articles 8(a)(ii), 9(2)(d) and 9(1)(b) of the AIE Regulations
22 February 2024
1. This decision relates to two appeals received by this Office on 15 February 2024.
2. On 13 November 2023, Mr. A requested “all documents, reports, emails, presentations, scientific papers, records of meetings and correspondence between daa, or consultants, or third parties acting on behalf of the daa, with Professor Mathias Basner” [Request A].
3. DAA refused the request on 11 December 2023 pursuant to article 8(a)(ii) and article 9(2)(d) of the AIE Regulations. On 12 December 2023, the appellant sought an internal review. On 10 January 2024, DAA affirmed the original decision to refuse access to the information requested under articles 8(a)(ii) and 9(2)(d) of the AIE Regulations.
4. On 21 November 2023, Mr. Foxe made a request to DAA seeking, “- copies of any reports associated with the presence of PFAS at Dublin Airport and the subsequent decision to remove soil. - copies of any correspondence between daa and the EPA with regard to the presence of PFAS on airport lands. I would prefer to receive this information electronically, ideally in its original electronic format” [Request B].
5. DAA intended to extend the time for making a decision on this request, but the letter notifying the appellant of this extension did not reach him due to a clerical error in the intended email. On 3 January 2024, the appellant sought an internal review on the basis of a deemed refusal. On 2 February 2024, DAA issued a decision refusing access to the information sought under article 9(1)(b) of the AIE Regulations.
6. The appellants both appealed to my Office on 15 February 2024.
7. I have now completed my review under article 12(5) of the Regulations.
8. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. The scope of my review in these appeals is whether DAA were justified in refusing the information requested under articles 8(a)(ii), 9(2)(d) and 9(1)(b) of the AIE Regulations.
11. The decisions of DAA in these appeals are notable due to their brevity. Due to the nature of the decisions made, and the fact that the appeals were received by my Office on the same day, I consider it appropriate to deal with these appeals in one decision.
12. The original decision in respect of request A states that 27 records have been identified which relate to the request. Access was granted in full to 2 records. The decision refuses access to the remaining 25 records, citing “article 8 ii)” (presumably a reference to article 8(a)(ii)) and article 9(2)(d) of the AIE Regulations. Accompanying the decision was an appendix listing the relevant documents. This appendix refers to refusal under articles 8(a)(ii) and 9(1)(b) of the AIE Regulations. It is therefore not clear whether this request was refused under article 9(2)(d) or 9(1)(b) of the AIE Regulations.
13. The internal review decision in respect of request A states that it affirms the decision of the original decision-maker to refuse access to the information requested under articles 8(ii) and 9 of the AIE Regulations, not specifying which sub-provision of article 9 is being relied upon.
14. The sole decision in respect of request B states that the request is being refused under article 9(1)(b) of the AIE Regulations. Brief reference is made to the public interest balancing test.
15. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
16. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
17. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
18. It is clear from my review of the decision-making records in this appeal that DAA has not complied with its duty to give reasons for its decisions in respect of these requests. It is not possible for the appellants to discern why their requests have been refused, as DAA have merely made reference to some provisions of the AIE Regulations, without any further explanation. In the decisions in respect of request A, it is not even clear which provisions of the AIE Regulations are being relied upon. Due to this failure to provide any or any adequate reasons for refusal, I find that DAA was not justified in refusing the information sought.
19. Rights under the AIE regulations are very important and there is a clear duty on public authorities to comply with their obligations, including the obligation to give reasons. This office has a significant backlog of appeals and it will be impossible to clear the backlog if public authorities don’t issue comprehensive and lawful first instance decisions. My options under the AIE regulations are limited and it is not tenable for this Office to review in substance all environmental information where public authorities do not make lawful and sufficiently reasoned first instance decisions. Thus I have the power to order DAA to release the information, or to provide a copy of same to this office. But in my view the AIE Regime is best served by remittal in this case for DAA to carry out a fresh decision-making process. DAA should consider this matter afresh and if it intends on refusing any part of these requests, should provide the appellant with adequate reasons for why it is doing so. This will allow the appellants to make a meaningful request for internal review, and if they remain dissatisfied, to make a reasoned appeal to my Office.
20. I understand that the requestors in these appeals may feel that this allows DAA to have an additional opportunity to consider their requests, and will add a considerable delay to this case. But it appears to be to be the least worst option given the nature of the decisions issued in respect of these requests. If DAA issue further decisions in respect of these requests without reasons, I may have to consider simply ordering release of the information
21. Having carried out a review under article 12(5) of the AIE Regulations, I annul the decisions of DAA due to the failure to provide adequate reasons for refusal and direct that a new decision-making process be carried out in respect of each request.
22. 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