Decision
Mr Ken Foxe & DAA Public Limited Company
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-161719-W2X7J2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-161719-W2X7J2
Published on
Whether DAA was justified in refusing access to the information sought relating to purchase orders over €20,000 in Q3 2024 under articles 9(2)(a), 9(1)(c), and 9(1)(a) of the AIE Regulations.
13 March 2026
1. This case relates to a previous appeal to this Office, reference OCE-156150-T1H5S5 . On 1 November 2024, the appellant submitted the following request to DAA:
“I’ve taken into account the decision in AIE request 2435 and have decided to reduce the scope considerably for a new and separate request. Under the AIE Regulations, I am seeking the following: - a database/spreadsheet/record of all purchase orders/payments in excess of €20,000 for Q3 2024. Please ask the decision maker to refamiliarise themselves with the following so that they can make the distinction of what is and isn't expenditure that would be captured by AIE: https://ocei.ie/en/ombudsman-decision/1c10e-right-toknow-clg-and-bord-na-mona/ I would prefer to receive this information electronically, ideally in its original electronic format. If you need to clarify anything in this request, please contact me via email.”
2. On 30 December 2024, DAA issued its decision, refusing the appellant’s request under articles 9(2)(a) and 9(1)(c) of the AIE Regulations. Subsequently, the appellant sought an internal review of that decision. On 29 January 2025, DAA issued its internal review decision, affirming its decision under articles 9(2)(a) and 9(1)(c) of the AIE Regulations. On 31 January 2025 the appellant submitted an appeal to this Office of DAA’s decision dated 29 January 2025, appeal reference OCE-156150-T1H5S5. The scope of that review concerned whether DAA was justified in refusing access to the information sought on the basis that it is not environmental information or under articles 9(2)(a), 9(1)(a), and 9(1)(c) of the AIE Regulations. This Office issued a decision in OCE-156150-T1H5S5 on 20 June 2025, which is available here , annulling the DAA’s decision and directing it to carry out a fresh internal review decision-making process on the basis that it had failed to give adequate reasons for refusing the request.
3. On 29 July 2025, DAA wrote to the appellant noting its position that the request is manifestly unreasonable having regard to the volume of information sought. It noted that the request covers 423 purchase orders and processing the matter would place an unreasonable demand on DAA resources and disrupt its ability to perform its core functions. DAA invited the appellant to make a more specific request. On 5 August 2025, DAA wrote to the appellant confirming that no engagement regarding scope had been received and it would proceed to process the matter.
4. On 20 August 2025, DAA issued its new internal review decision. DAA refused access to the information sought under articles 9(2)(a) and 9(1)(c) of the AIE Regulations. On 21 August 2025, the appellant submitted an appeal to this Office of DAA’s decision dated 20 August 2025, appeal reference OCE-161719-W2X7J2.
5. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between DAA and the appellant as outlined above and to correspondence between my Office and both DAA and the appellant on the matter. 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)
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
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. During the course of this review, DAA provided this Office with a copy of the spreadsheet it had identified as relevant to the appellant’s request. It also noted that article 9(1)(a) of the AIE Regulations may apply. Given the de novo nature of a review by this Office, I am satisfied that the scope of this review concerns whether DAA was justified in refusing access to the information sought under articles 9(2)(a), 9(1)(c), and 9(1)(a) of the AIE Regulations.
9. It is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal.
10. A review by this Office is de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision.
11. Article 11(2) of the AIE Regulations requires that the person making the internal review decision be of a rank that is the ‘same as, or higher than, that of the original decision-maker’. In correspondence with this Office, the appellant raised issue with the fact that DAA did not provide the name of the decision-maker. I note that the content of the internal review decision indicates that it is being made by the Group Environmental Manager, however I also note that the decision is not signed by a named individual. I would ask DAA to ensure that the name and rank / position of decision-makers is made clear in all future decisions.
12. 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.
13. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. 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. 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.
14. The Minister’s Guidance, at paragraph 12.8, states that 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” (my emphasis). In light of this, I am of the view that where a public authority intends to refuse a request under article 9(2)(a) it should first assist the appellant to reformulate the request as appropriate. Both public authorities and appellants should seek to liaise constructively with a view to processing the request as efficiently as possible.
15. While I note that DAA invited the appellant to make a more specific request on 29 July 2025, DAA gave no indication as to how he might go about doing so (e.g. by giving examples of particular categories, projects, activities, operations to which the purchase orders relate or a reduced timeframe). I would encourage DAA to engage, in so far as possible with requesters in circumstances where it considers a request to be manifestly unreasonable, to provide reasonable assistance with regard to suggested reformulations of the request. I also understand from DAA’s correspondence to the appellant on 5 August 2025, that the appellant did not respond. Although the lack of constructive engagement between the parties is disappointing, this is not, in and of itself, a requirement for a public body’s reliance on or an immediate basis for refusal under article 9(2)(a) of the AIE Regulations.
16. The European Commission’s First Proposal for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests “variously described in national legal systems as vexatious or amounting to an abus de droit.” It noted that “compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Public authorities should be able to refuse access in such cases in order to ensure their proper functioning.” The Aarhus Convention Compliance Committee (ACCC) has emphasised that “whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on request for advice by Belarus, ACCC/A/2014/1, para. 28)
17. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, it is clear that a request is not necessarily covered by the “manifestly unreasonable” exception just because it is voluminous or complex. Both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. I further note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public, and article 5 of the AIE Regulations which seeks to implement that provision. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that the duty in Article 7 of the AIE Directive indicates that individual requests should, in principle, be on matters of detail. Accordingly, the fact that a request is detailed does not mean that it is necessarily unreasonable.
18. 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. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
19. It is also important to bear in mind article 5 of the AIE Regulations and Articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exemption in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” Accordingly, in cases involving article 9(2)(a) this Office may consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
20. In its internal review decision, reiterated in its submissions to this Office, DAA noted that there are 423 purchase orders at issue. It explained that due to the specialist expertise and seniority required to make an informed assessment only a limited number of senior employees can carry out the review. It noted that the Group Environmental Manager at DAA was identified as the resource with the specialist expertise to determine whether purchase orders relate to matters that can be considered “environmental information”, as well as the required seniority to complete an internal review in line with the requirements of the AIE Regulations.
21. DAA stated to make a decision, each record must be carefully reviewed to identify the elements that qualify as environmental information and once that assessment is complete, the relevant exemptions under the AIE Regulations must be considered as appropriate. DAA indicated that article 9(1)(c) and, and its submissions to this Office, 9(1)(a) of the AIE Regulations would need to be considered.
22. Based on the record supplied to this Office by the DAA, I can see there is a high-level description of each of the purchase orders. DAA submitted that it is not sufficient to assess each purchase order on the basis of its description alone, as the broad scope of the definition of environmental information means that a document which might not at first glance appear to fall within that definition may nonetheless contain elements of environmental information. I accept that having considered the record provided by DAA in relation to this request, that there is good reason to believe on the face of it that a number of the 423 purchase orders cannot be considered to be environmental information and that analysis in this respect is required.
23. DAA further submitted that a large number of third parties are involved and where a purchase order is deemed to contain environmental information, it will be necessary to examine the existing contractual arrangements in detail to determine whether confidentiality provisions apply. DAA contended that each affected third party must then be notified of the request and consulted to assess the potential commercial impact of releasing the information.
24. DAA contended that it would take an estimate of 30 minutes per purchase order, totalling at least 207 hours, to process the request. It also provided the following breakdown, with further detail in its submissions:
• 49 hours – review of individual purchase orders (7 minutes for each of the 423 purchase orders);
• 62 hours – review of contractual agreements (20 minutes for each of the 187 individual third parties);
• 94 hours – engagement with vendors informing them of the information subject to release and assessment of any detrimental impact on third parties (30 minutes for each of the 187 individual third parties) (in its submissions to this Office, DAA also noted that this excluded an additional 30 minutes of legal and procurement supports regarding contract variations).
• 2 hours – application of the public interest test.
25. DAA outlined that the minimum time required to process the request would result in an administrative burden that would significantly impede the day-to-day duties required of the Group Environmental Manager, with specific responsibility for regulatory management and engagement. DAA stated that the role of the Group Environmental Manager is of critical importance to its operations with the responsibility to ensure that it remains in compliance with its legal environmental responsibilities and providing technical expertise, particularly where urgent and time sensitive issues arise. DAA stated that this would impede the proper functioning of DAA by redirecting critical staff from their core duties for an extended period of time. DAA outlined that, therefore, it considered the request to be manifestly unreasonable in accordance with article 9(2)(a) of the AIE regulations as it places disproportionate burden on DAA’s ability to perform its core functions.
26. In his statement to this Office, the appellant contended that DAA’s estimate “is a deliberate, calculated exaggeration of what would be involved in processing the request…The idea that it would take thirty minutes to examine each transaction is an absurdity. There is no necessity for the DAA to contact any of the third parties concerned. The mere fact of doing business with a semi-state organisation is not confidential information. The information contained in each purchase order provides no details of the extent of services provided for or any pricing information, only the amount and the name of the provider. It gives no commercially sensitive material, as is evidenced by the fact that all public bodies publish such lists without any concerns arising, or having ever arisen.”
27. I note that this Office referred DAA to two previous cases involving a different semi-state public authority, BnM, where similar information was requested for significantly longer time periods (2019-2022 and 2023-2024), there were more purchase orders at issue (2,212 and 1,180), and BnM’s time estimates for processing those requests was considerably less (157 hours and 142 hours) compared with DAA’s estimate of 207 hours for 423 purchase orders. However I fully acknowledge that each case must be considered on its own merits, and each public authority’s administrative procedures and the type of purchase orders held vary, such that more/less time may be required to determine whether they are deemed to be environmental information in line with article 3(1) of the AIE Regulations and, where relevant, the application of exemptions. I note the appellant’s refusal to accept that it would take DAA 30 minutes to review each purchase order. Based on the knowledge and experience of this Office, I think it’s likely that it would take a public authority on average somewhere between 5 minutes and 30 minutes on average to review each of the 423 purchase orders contained in this record. Even allowing for a minimum estimate of five minutes per purchase order to carry out the various tasks involved, this would comprise a total minimum estimate of 35 hours.
28. While I accept that the time frame of the request comprises a confined period of 3 months (Q3 2024), 423 purchase orders are captured. Having regard to the nature of the request, I am satisfied that the information sought is both voluminous and wide-ranging. DAA noted that the work to process the request would be required to be undertaken by the Group Environmental Manager. DAA explained the role and duties of the Group Environmental Manager and additionally provided a job profile template to this Office. I consider that a minimum of 35 hours of work required of the Group Environmental Manager to process the request would result in an unreasonable disruption of their duties and, given their senior position, DAA’s activities generally. I am also satisfied that the work involved in processing this request would need to be carried out by one individual and could not be appropriately delegated to any other staff, in the way that carrying out searches or scheduling documents could be delegated in appropriate cases. In this case, the decision-maker would require to be satisfied that the decision was correct in respect of each individual purchase order.
29. Article 9(2)(a) of the AIE Regulations is an acknowledgement of the fact that public authorities should not be required to undertake the processing of AIE Requests where to do so would place an unreasonable burden on what are often limited resources. In the circumstances of this case, the resources required, and the steps to be taken, I accept DAA’s contention that the processing of the request would place an unreasonable burden on DAA, involving disproportionate effort that would result in a significant interference with the work of the Group Environmental Manager and, as a result, DAA. This result would be a particularly heavy administrative burden on DAA.
30. As noted above, the exception in article 9(2)(a) of the AIE Regulations is not intended to endorse any failure by public authorities to comply with their duties of dissemination of environmental information under article 5 of the AIE Regulations and Article 7 of the AIE Directive. Accordingly, it is relevant to consider whether the information is the kind of environmental information that would one expect to be organised by the public authority in a manner that enables its easy dissemination. The appellant in this case sought access to information relating to all purchase orders over a specified period, amounting to 423 purchase orders. While I note the appellant’s comments that other public authorities publish this type of information routinely, I am also aware of DAA’s comment to this Office to the effect that DAA is not subject to the requirement in the Public Service Reform Plan at 9.4 “Every Purchase Order by a Government Department or Agency for €20,000 or over should be published online.” I do not consider this to be the kind of environmental information that one would expect to be organised by DAA in a manner that enables its easy dissemination under article 5 of the AIE Regulations, in particular, having regard to the type of information indicated at article 5(2) of the AIE Regulations.
31. I have had regard in this case to the volume and range of information at issue, the time estimated and resources required, the steps to be taken in processing the appellant’s request, and the impact of dealing with the request on the other work of the senior staff member involved and, given their senior position, DAA generally. I am mindful that the exception in article 9(2)(a) of the AIE Regulations is only available where the administrative burden entailed by dealing with the request is particularly heavy. On the facts of this appeal, I find that the manifestly unreasonable threshold has been met and article 9(2)(a) of the AIE Regulations is engaged. This finding is not simply due to volume alone, due to the range of factors that I have set out above.
32. I emphasise that my conclusion in this case should not be taken to mean that public authorities may rely on the exception in article 9(2)(a) in respect of every request for voluminous or wide-ranging information. Each request to a public authority must be considered on its own particular facts. Public authorities have obligations under the AIE Directive and AIE Regulations and must put in place adequate resources to comply with those obligations.
Article 10 of the AIE Regulations
33. Although I have found article 9(2)(a) of the AIE Regulations is engaged, that is not the end of the matter. It is necessary to weigh the public interest served by disclosure against the interest served by refusal as is required by articles 10(3) and 10(4) of the AIE Regulations.
34. In considering the public interest served by disclosure, it is important to be mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually to a better environment.” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making.
35. The AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases.” One such case is where the request is manifestly unreasonable having regard to the volume or range of information sought. The public interest in maintaining the exception lies in ensuring that the processing of AIE Requests does not cause an unreasonable interference and/or disruption of the work of a public authority.
36. The appellant was invited on 27 August 2025 to make submissions on this matter generally, including the application of the public interest test to this appeal. The appellant did not respond. I note the appellant’s comments that other public authorities publish this type of information. I also recall DAA’s comment to this Office to the effect that DAA is not subject to the requirement in the Public Service Reform Plan at 9.4 “Every Purchase Order by a Government Department or Agency for €20,000 or over should be published online.” I do not consider the information sought to be the kind of environmental information that one would expect to be organised by DAA in a manner that enables its easy dissemination under article 5 of the AIE Regulations. Furthermore, the fact that other public bodies are required to generally publish purchase orders over €20,000 does not automatically mean that DAA is required to have made a determination on each and every purchase order over €20,000 as to whether it is environmental information or that DAA is required to publish details relating to purchase orders over €20,000 under the AIE Regulations, where they comprise environmental information.
37. In its internal review decision, DAA stated that it weighed factors in favour of disclosure, the public interest in transparency and accountability in environmental matters, against factors in favour of refusal, including avoiding undue administrative burden on public authorities. It noted “[g]iven the scale of this request…and the impact on daa’s ability to carry put its core environmental compliance functions…the public interest is better served by refusing access in this instance.”
38. In the circumstances of this case, while I accept that there is a public interest in transparency relating to DAA’s purchase orders over €20,000, that compromise environmental information, I also acknowledge that there is an interest in ensuring that the processing of an AIE Request does not cause any unreasonable interference with and/or disruption of the work of a public authority. In the absence of any specific submissions regarding the public interest test from the appellant and considering the broad nature of the request, it is not possible for me to consider in any specific way how the release of this information might advance the objectives of the Aarhus Convention, assist in participation in any decision-making process on environmental matters or otherwise lead to a better environment. Having weighed the factors, in the circumstances of this particular case. I am satisfied that the public interest in disclosure does not outweigh the interest served by refusal. Accordingly, I find, that DAA’s decision under article 9(2)(a) of the AIE Regulations was justified.
39. In accordance with article 10(5), I have considered whether DAA could have separated information out information held with information to which article 9(2)(a) applies. All of the information is contained with one spreadsheet and I am satisfied that each purchase order needs to be reviewed individually in order to determine whether it is environmental information and, if so, whether any of the grounds for exemption under articles 8/9 of the AIE Regulations apply.
40. Given the nature of the information sought in this case, I am satisfied that DAA was unable to consider article 10(5) of the AIE Regulations. While DAA ought to have provided greater assistance to the appellant in refining his request, I also understand that the appellant declined to engage on the matter. While DAA could have limited the matter (e.g. to particular categories, projects, activities, operations to which the purchase orders relate or a reduced timeframe), in the circumstances of this case, I am satisfied that it was reasonable for DAA not to have considered the separation of information.
41. I find, therefore, that DAA’s decision under article 9(2)(a) of the AIE Regulations was justified. In the circumstances, I am not required to consider the application of 9(1)(a) of the AIE Regulations or article 9(1)(c) of the AIE Regulations.
42. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm DAA’s decision under article 9(2)(a) of the AIE Regulations.
43. 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*
On behalf of the Commissioner for Environmental Information