Decision
Mr C. & Department of Housing, Local Government and Heritage
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140567-J6L3D7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-140567-J6L3D7
Published on
Whether the Department was justified in refusing access to the information sought under articles 9(1)(b), 8(a)(i), 8(a)(ii) and 8(a)(iv) of the AIE Regulations.
21 April 2026
1. On 11 March 2023 the appellant made an AIE request seeking “A Review into Certain Planning Matters in Respect of Donegal County Council', by Mr. Rory Mulcahy ”.
2. On 31 March 2023 the Department issued its original decision, which identified one record coming under the scope of the request and refused access to it, relying on articles 8(a)(i), 8(a)(ii), 8(a)(iv) and 9(1)(b) of the AIE Regulations.
3. On 17 May 2023 the appellant requested an internal review of the decision.
4. On 15 June 2023 the Department issued its internal review decision, affirming the original decision, reiterating its reliance on the articles noted above.
5. The appellant appealed to this Office on 13 July 2023.
6. I have been directed by the Commissioner to undertake a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department. 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’).
7. 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.
8. As the Department relied on articles 8(a)(i), 8(a)(ii), 8(a)(iv) and 9(1)(b) of the AIE Regulations to refuse access to the information sought, the scope of the review is confined to assessing whether that reliance is justified.
9(1)(b)
9. Article 9(1)(b) of the AIE Regulations provides a discretionary ground for refusal of information by a public authority where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries). This provision seeks to transpose Article 4(2)(c) of the AIE Directive, which in turn is based on Article 4(4)(c) of the Aarhus Convention. Article 4(2)(c) of the AIE Directive provides that Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature.
10. The wording of article 9(1)(b) of the AIE Regulations makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the public authority must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the course of justice (see C-619/19 Land Baden-Württemberg v DR). The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical.
11. The Minister’s Guidance, in considering “The Course of Justice” states: “Environmental information relating to anything which is the subject matter of any legal proceedings, or of any formal inquiry (whether past or present), or any preliminary investigation, may be refused. Examples would include information in connection with intended prosecution of offences by the Director of Public Prosecutions or by local or other public authorities; information affecting enforcement proceedings; material arising from public or disciplinary inquiries; and information relating to preliminary or other proceedings instituted by the European Commission ” (paragraph 12.3).
12. In its submission to this Office in September 2023, the Department contends that article 9(1)(b) applies to the record identified in its entirety, on the grounds that release of the information would adversely impact the ability of the Department to carry out “further investigations of the cases reviewed and would prejudice the Minister in his analysis of the appropriate action to take on foot of the Report ”. The Department further contend that “Premature or forced release of the content of the report, in the absence of a decision on what further action should be taken, all create a risk of undermining, prejudicing, or exposing to premature litigation, any further action, examination or investigation the Minister may direct ”.
13. Whilst being mindful that I do not expose the specific contents of the record, I am cognisant that some details pertaining to it exist in the public realm. Accordingly, it is appropriate to summarise its purpose as an examination of the performance of certain administrative functions at Donegal County Council which specifically focuses on 20 individual cases, provided by a complainant, in order to establish whether a prima facie basis exists for any of the allegations raised. Complaints examined within the report were raised with the Minister by a member of the public, in respect of alleged corruption in the Council, with Senior Counsel, Mr. Rory Mulcahy, appointed to carry out a scoping exercise in respect of the allegations made regarding administrative and governance issues at the Council. I note that the Department has advised there are 111 individuals named in the report, some of whom are identified in course of their duties and others who are the subject of the allegations at issue.
14. With respect to the application of article 9(1)(b) as applied to the record in its entirety, the Department contends that to redact the report or otherwise provide a limited release of the information within it would render the report unintelligible and/or misleading by virtue of its omissions.
15. In an updated submission on 6 March 2026 the Department reiterated its previous contentions regarding the applicability of 9(1)(b) to refuse disclosure and confirmed that the report, the implications of release and the appropriate response to the report, are actively under consideration by the Minister.
16. It is relevant to note that the report, and its publication status, was the subject of a parliamentary question on 25 November 2025, in which the Minister noted that he is currently considering the report and intends to bring it to Government “for consideration in due course ”.
17. Having considered the submissions of the Department, and having carefully examined the relevant record, I am satisfied that it has been established that the release of the information would adversely affect the course of justice as it could reasonably be expected to impact on action emanating from examination of the report by the Minister to include further investigation regarding same. It is my view that as the very nature and purpose of the report is to establish if grounds for further investigation into the actions alleged exist, as they pertain to specific individuals, the record can clearly be understood as a chief and central instrument which would guide any future investigative administration of justice process or proceedings. The individuals mentioned in the report against whom the allegations have been made, have clear rights to fair procedures and a good name. As the report is preliminary in nature, release at this stage could upset the course of justice by putting information into the public domain that might prejudice a full investigation by the Department.
18. Whilst the appellant contends that “The Department has not shown that there is any current investigation that could be prejudiced by the release of the information requested ” I am satisfied that, notwithstanding the time that has lapsed since its submission to the Minister, that the report is subject to active consideration.
19. Further, having reviewed the record at issue, I agree with the Department’s contentions that redaction or limited release of the report would not be appropriate, given the nature of the information and the inferences which could be made concerning it as a result of the record being released in an incomplete manner.
20. I therefore consider that the exception as set out in article 9(1)(b) of the AIE Regulations has been correctly applied to the withheld information, and I will now go on to consider whether the interest in withholding the relevant information is outweighed by the public interest in its disclosure, having regard to the provisions of article 10(3) and 10(4) of the Regulations.
21. In weighing up the public interest concerning disclosure, the Department outline its consideration of the public interest in members of the public exercising their rights under the AIE Regulations and “the public interest in environmental information being made available and disseminated to the public in order to achieve the widest possible systematic availability and dissemination to the public of environmental information ”.
22. I also note the appellant’s submission that “The interests of justice are not served by secrecy. The Department has not shown that there is any current investigation that could be prejudiced by the release of the information requested, or any other fashion in which this release could divert the course of justice. The public interest, and the course of justice, would be best served by the release of this report ”.
23. In favour of refusal, I note the Department’s submission which proposed that the public interest in withholding the records outweighs the interest in its disclosure, contending the following:
• “Premature release of records would impair the integrity and viability of the decision-making process to a significant or substantial degree without countervailing benefit to the public
•premature release of the records would expose the AIE body to a significant risk of legal challenges and defamation cases
•the public interest in public bodies being able to perform their functions effectively
•ensuring AIE is not used to the detriment of the equitable treatment of individuals ”
24. The Department have further contended that the information was provided by individuals to the Senior Counsel who authored the report “in good faith and in the spirit of co-operation, motivated for the most part by a desire to act as a good citizen and assist in a process that could bring these complaints to a satisfactory conclusion ” and “on the understanding, per the Terms of Reference, that information submitted would be for the sole purpose of compiling a report to advise the Minister on whether or not a prima facie case existed, and what might be done if so ”. It argues accordingly that the public interest is not served by violating the trust placed in such a process, against assurances of confidentiality, and could serve to undermine future regulatory or investigative processes of a similar nature.
25. In considering the public interest served by disclosure in this case, I note that there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive. There is also a general interest in the openness and transparency of the decision-making processes of public authorities in relation to environmental matters. Increased transparency around the internal deliberations of public authorities on how they achieve this protection is an important consideration in applying the public interest test.
26. Having considered the position of both the appellant and the Department, I am persuaded that in this case the public interest served by disclosure does not outweigh that of refusal. While I acknowledge the weight which transparency and openness carry in respect of a public authority’s consideration of environmental matters, I am of the view that as the report and its recommendations are not concerned with broader issues of local government planning or authority but rather may be described as a targeted scoping exercise with respect to specific allegations of misconduct against named persons, there is limited public interest in its premature/forced publication.
27. I am also of the view that given the report, by its very purpose and nature, does not seek to make any affirmative findings regarding the alleged wrongdoing undertaken by named individuals, it would not be in the interest of those named, nor of those allegedly harmed or impacted by the alleged actions, and by consequence the broader concerned public, for it to be forcefully/prematurely released. It does not, in basic terms, actually resolve concerns raised by the complainant, nor does it affirmatively dispute them, and in occupying the space of inexactitude whilst dealing with serious subject matter, I cannot clearly see how the public interest in disclosure is served.
28. Further, I am minded to agree with the Departments’ contention that there is little public interest in directing release of information, which was obtained, under the expectation of confidentiality, from individuals for the purpose of an exploratory exercise to inform a decision regarding investigative actions. I am of the view that this may result in a chilling effect with respect to exercises of a similar nature which, in the context of the democratic values of fairmindedness, civic duty and participation, would not serve the public interest and could negatively impact on the state’s ability to conduct such affairs with the assurances of confidentiality and fairness required to make participation meaningful. That isn’t to say that in all other similar circumstances I would affirm a public authority’s decision not to release a report such as this, as all appeals rest on their own facts.
29. As I have found that the Department was justified in applying 9(1)(b) to the information requested, it is not necessary for me to consider the other articles which the Department has sought to rely on.
30. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s internal review decision in refusing access to the information sought.
31. 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.
Gemma Farrell
Senior Investigator
Office of the Commissioner for Environmental Information