Decision
Mr Eoin Brady and Cork County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132481-B4S5S9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132481-B4S5S9
Published on
Whether the Council was entitled to rely on articles 8(a)(i) and 8(a)(iv) of the AIE Regulations to refuse the information requested
1. This case relates to an application for a licence to erect an Alpha 18-metre-high free-standing telecommunications street pole on the public grass verge adjacent to the R592 road at Ballydehob in County Cork. The application is what is known as a section 254 application under the Planning and Development Act, 2000 (the Planning Act), which explains in a short description that a section 254 application refers to the “[l]icensing of appliances and cables, etc., on public roads.”
2. By way of explanation, a section 254 licence application is submitted to the planning authority in whose territorial ambit the erection or placement of an appliance is sought to be made. In this case, as Ballydehob is in County Cork, the application was submitted with Cork County Council, as the appropriate planning authority. The licence was granted in this case on 30 March 2022, but was appealed, in accordance with section 254(6) of the Planning Act, to an Bord Pleanála (ABP), on 30 June 2022, by residents of the locality in which the telecommunications street pole was due to be erected.
3. On 29 September 2022, the appellant submitted a request for a copy of the entire file held by Cork County Council regarding the application. The request revealed knowledge of, and made explicit reference to the appeal against the granting of the licence to ABP. On 13 October 2022, prior to the issuing of its decision in the matter, an internal Council note of a telephone call with the appellant reveals that the latter “was willing to accept the information with the names and addresses on the petition redacted but to leave in the wording of the petition.” This refers to a petition which was an integral part of the appeal to ABP, containing names and other personal information relating to persons who had signed the petition.
4. The Council issued a decision on 17 October 2022, which was to part-grant the request, namely to release 17 of 21 relevant records to the appellant but to refuse release of four records under articles 8(a)(i) and 8(a)(iv) of the AIE Regulations
5. By way of explanation, the Council came to be in possession of the four withheld records because section 129(1) of the Planning Act mandates ABP, in respect of appeals made to it, to “give a copy thereof to each other party”, which includes the planning authority that granted the licence, in this case, Cork County Council.
6. On 18 October 2022, the appellant requested an internal review of the decision to refuse to release the four records on the basis that the records are not related to the proceedings of ABP, are not confidential in nature and are not protected from disclosure by law.
7. The Council issued its internal review outcome on 17 November 2022. It affirmed the original decision on the basis of article 8(a)(iv) of the AIE Regulations. It made no reference to the application of the other exemption relied upon in the original decision, namely that of article 8(a)(i). However, in subsequent submissions to this Office during the course of the investigation, the Council confirmed that it continued to rely on the provision to refuse access to personal information.
8. The appellant brought an appeal to this Office against the decision of the Council on 19 November 2022.
9. I am directed by the Commissioner for Environmental Information to conduct a review of this appeal under article 12(5) of the AIE Regulations. In so doing, I have had regard to the submissions made by the appellant and the Council on this matter.
10. During the course of the investigation and following engagement with this Office, the information that had been withheld by the Council was released to the appellant. I welcome the Council’s decision to release the information it had withheld. However, it is unacceptable that its refusal to release the four records in this case was followed by a reversal of that decision as a result of the interventions of this Office. This has resulted in avoidable delay in the appellant receiving the information, which is contrary to the spirit and purpose of the Aarhus regime.
11. The Council is urged in future to be proactive in preventing appeals being submitted to this Office by actively releasing information on the environment when not constrained by any of the exemptions in the AIE Regulations.
12. I take the opportunity to note that, as the Council held the requested information, the appellant was within its rights to request it from the Council, irrespective of whichever other public authority might be in possession of it, in this case ABP. The AIE Regulations are clear at article 7(1) that a public authority shall make available any environmental information held by or for it.
Analysis
13. The Council relied on article 8(a)(iv) to withhold initially four documents from the appellant.
14. There are a number of elements which must be satisfied before the question of refusal under article 8(a)(iv) arises:
(i). the case must involve “proceedings” of public authorities;
(ii). those proceedings must have an element of confidentiality;
(iii). that confidentiality must be adversely affected by the disclosure of the information requested; and
(iv). that confidentiality must be protected by law.
15. In both its original and internal review decisions, the Council relied on this article to withhold information. However, while it relied on the appeal proceedings at ABP to satisfy the first element of the article, it failed to identify (a) the element of the proceedings that was confidential; and (b) if that element was fulfilled, how the confidentiality would be adversely affected by release of the information; and (c) how that confidentiality is protected by law. The Council merely referred to the fact that the information withheld related to a live appeal before ABP, without any further consideration. This is not a sufficient basis to establish reliance on the exemption provided for in article 8(a)(iv).
16. It is appropriate to note in this context that the protection of 8(a)(iv) applies only to the final stage of the decision-making process. The Court of Justice in case C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany (Flachglas) has made it clear that “the concept of ‘proceedings’” referred to in article 4(2)(a) of the Directive (transposed by article 8(a)(iv) of the Regulations) “refers to the final stages of the decision-making process of public authorities” (para. 63). A similar conclusion was reached by the Court of Justice in case C-60/15 Saint-Gobain Glass Deutschland GmbH v European Commission (Saint Gobain). Although this case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention on which both the Directive and the Regulations are based. Indeed, the Advocate General, when referring to the ground for refusal at issue in Saint Gobain noted that “the same ground for refusal is laid down in article 4(2)(a) of [the AIE Directive]” before concluding that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see para. 51). The Court of Justice found that “as observed by the Advocate General at point 76 of his Opinion, Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings” (see para. 81).
17. The CJEU case of Saint Gobain, which I have referred to above, provides useful guidance in assessing whether the protections of article 8(a)(iv) extend to the type of information requested in this appeal. The Advocate General at paragraph 56 of his Opinion adopted the approach taken by the German courts after the CJEU’s ruling in Flachglas, namely that information forming the factual basis for decisions taken should be protected only if it allows clear conclusions to be drawn regarding the deliberation process.
18. As noted, the Council did not explain how release of the withheld information would affect the confidentiality of the final stage of the decision-making of ABP. It thus failed to justify refusal on this element of 8(a)(iv) also. Public authorities should be cognisant of the duty to give reasons which the High Court made clear exists in Right to Know v An Taoiseach [2018 IEHC 372 ]. As Faherty J held at paragraph 106 of her judgment: “… 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 [a] refusal [to release information]”. In its submission to this Office, the Council was asked to set out how the confidentiality of the proceedings would be adversely affected. It stated that this was a decision for ABP to make. While I note that it attempted to contact ABP by telephone in advance of making its original decision and did not receive a response, this is not a sufficient justification for refusal under article 8(a)(iv). The Council stated that its query to ABP concerned whether the file containing the withheld records would be available at ABP’s own public counter at that time. However, this was not the issue that required consideration, but rather how release of the information would adversely affect the confidentiality of its proceedings. In the absence of a response from ABP, the Council is still required to give adequate reasons for its reliance on article 8(a)(iv).
19. I will briefly comment on the Council’s reliance on article 8(a)(i). Firstly, it is not satisfactory that a public authority should seek to rely on an exemption contained in the AIE Regulations when an appeal is being considered by my Office, when the same provision was not relied upon in the internal review decision. A public authority should fully consider all relevant matters when an AIE request is being dealt with at both original decision and internal review stages. Nonetheless, in a similar manner to the above, the Council appears to have sought to rely on article 8(a)(i) solely due to the presence of what it considered to be personal information in the relevant records. In order to rely on article 8(a)(i) a public authority must establish that the confidentiality of the personal information is protected by law, and that this confidentiality would be adversely affected by the release of the information sought. Given that the relevant documents have now been released, without any redaction, I am not satisfied that article 8(a)(i) provided any basis for the refusal of the request.
20. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the decision of the Council to refuse to release the four withheld documents. As the Council has released the requested information to the appellant, I make no further direction.
21. A party to this appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision, as set out in article 13 of the AIE Regulations. 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