Decision
Right to Know CLG & Department of Housing, Local Government and Heritage
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-125763-H5Z2L3
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-125763-H5Z2L3
Published on
Whether information sought was environmental information and, if so, if it was exempt from disclosure by virtue of article 9(1)(c) of the AIE Regulations
15 April 2026
1. On 8 March 2022, the appellant submitted a request for copies of the following reports:
"Reports provided by Bord na Móna to NPWS* (called quarterly monitoring reports) for the Enhanced Decommissioning Rehabilitation and Restoration Scheme EDRRS
“The project is called PCAS by Bord [na] Móna
“Reports are now available for the following quarters :
April – Jun 2021 .
Jul – Sept 2021 .
Oct-Dec 2021 .
“As with all environmental data requests, I would like to request that NPWS publish future environmental monitoring reports on gov.ie or similar. There is a public interest in transparency, and it creates unnecessary FOI**/AIE requests when regular reports remain unpublished ".
2. By way of explanation, the National Parks and Wildlife Service is an executive agency within the Department, with primary responsibility for nature conservation, wildlife protection and the presentation and preservation of our national parks and nature reserves.
3. According to submissions made to this Office by Bord na Móna plc (BnM) dated 19 March 2024: "The EDRRS Scheme provides for the enhanced rehabilitation and decommissioning of former industrial peat production areas, beyond the rehabilitation requirements of Integrated Pollution Control (PC) licences attached to the relevant lands. The focus of the scheme is on optimising suitable hydrological conditions by blocking production field drains, reprofiling peat fields, forming low bunds and other wetland measures, which will create soggy peatland conditions that will be naturally colonised by plants and animals, allow compatible peatland habitats to redevelop and slow water movement across bogs during rainfall events. The scheme is funded by o grant from the Department of Environment, Climate and Communications (DECC), provided by the European Union's Recovery and Resilience Facility as part of Ireland's National Recovery and Resilience Plan. It is administered by DECC, operated by Bord no Móna Energy Limited and regulated by the National Parks and Wildlife Service (NPWS), which is part of DHLGH [the Department] ."
4. On 7 April 2022, the Department notified the requester of its decision, to partially release the requested records in the public interest. The correspondence was accompanied by a schedule of records identifying three records, stated that access should be granted to these three records with some information redacted by reason of article 9(1)(c) and, further, that "third party consultation " had taken place in accordance with article 7(11) of the AIE Regulations. The decision-maker noted that the schedule showed "how I have applied the public interest test pursuant to Article 10(3) and 10(4) ." Finally, the letter went on to state that if no third-party appeal were made to the Commissioner "within one month ", in accordance with article 12(4)(a)(i) of the Regulations, partial release of the records would follow.
5. By email dated 24 May 2022, the appellant sought an internal review of the decision.
6. On 23 June 2022, the Department wrote to the appellant setting out the findings of the internal review carried out on 22 June 2022. The internal review found that the decision made by the initial decision-maker should be varied and that some of the refused records should be released. The internal review provided an amended Schedule of Records (the amended Schedule) that were considered relevant to the appellant's request and provided a brief description of each record and the decision on each record. The amended Schedule noted where a decision was made to refuse or partially refuse access to a record, the article of the AIE Regulations under which the refusal had been made and recorded how the internal review had applied the public interest test pursuant to articles 10(3) and 10(4).
7. On 28 June 2022, the appellant submitted an appeal to this Office against the Department's redactions to the records released.
8. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and the correspondence provided to the Commissioner by the Department and Bord na Móna. I have also examined the contents of the records at issue. In addition, I have had regard to:
i. the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations;
ii. Directive 2003/4/EC (the “AIE Directive”), upon which the AIE Regulations are based;
iii. the European Communities (Access to Information on the Environment) Regulations 2007 to 2018 (S.l. No. 133 of 2007, S.l. No. 662 of 2011, S.l. 615 of 2014 and S.l. No. 309 of 2018) as amended ("the AIE Regulations");
iv. 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”);
v. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the “Aarhus Guide”);
vi. the judgments of the Superior Courts in Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ);
vii. the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner and Henney [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB and RTÉ; and
viii. the decisions of the Court of Justice of the European Union in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), and C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig).
9. What follows does not comment or make findings on each and every argument advanced, but I have considered all materials submitted in the course of the investigation.
10. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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, the Commissioner will require the public authority to make available environmental information to the appellant.
11. The information sought that is the subject of this appeal is as follows, in unredacted form:
a. Enhanced Decommissioning Rehabilitation and Restoration Scheme (EDRRS), Quarterly Report — Bord na Móna Q1FY22, (Apr 2021 to June 2021)
b. Enhanced Decommissioning Rehabilitation and Restoration Scheme (EDRRS), Quarterly Report-- Bord na Móna Q2FY22 (July 2021 to sept 2021)
c. Enhanced Decommissioning Rehabilitation and Restoration Scheme (EDRRS), Draft Quarterly Report — Bord na Móna Q3FY22 (October 2021 to December 2021) (draft version of report) (collectively the Quarterly Reports)
12. Having considered the contents of the appeal and the submissions made by the Department and Bord na Móna which, as an interested third-party was consulted on the matter, I consider that the scope of my review in this appeal concerns whether the information contained in the Quarterly Reports, that is, the information in the Summary and in Sections 2, 7 and 8, asserted by the Department not to be environmental information for the purposes of the AIE Regulations, is "environmental information" as defined by Article 2(1) of the AIE Directive (article 3(1) of the AIE Regulations); and, if so, whether that information, together with other redacted information, is exempt from release under article 9(1)(c) of the AIE Regulations.
13. A draft version of this decision was shared with the parties (and to Bord na Móna as an interested third party) for observations prior to issue. Whilst the Department indicated to this Office that it was in agreement with its contents, it had no submissions to make. Neither the appellant nor Bord na Móna submitted observations.
The Law - 'Environmental Information'
14. In the Department's submissions dated 6 June 2023, the redacted sections of the Quarterly Reports are broken down into eight (8) categories. The same categories and numbering will be used in this decision when considering the information at issue.
a. Summary, Section 2 and Section 8: Progress to date, work content and programme of work
b. Summary and Section 1* and Section 7 of the reports: Staff movements and Employee [numbers]
c. Section 2: total area to be rehabilitated
d. Section 3: Rehabilitation costs per bog
e. Section 3: information of the percentage of the grant claim spent to date
f. Section 6: Grant claim
g. Section 9: Risk management
h. Comments on the EDRRS Quarterly Report Oct — Dec 2021
*The Summary and Section 1 in the reports is one and the same.
15. As noted above, in its submissions the Department, whilst relying principally on article 9(1)(c) to support its refusal to release the information at issue, stated in respect of Category 1 (Summary, Section 2 and Section 8) that "operational matters as per the above is not environmental information and its inclusion is not necessary to understand the environmental information provided in the reports overall ." Similarly, in respect of Category 2 (Summary, Section 1 and Section 7 of the Quarterly Reports) the Department stated that "staffing information as per the above is not environmental information and its redaction does not negatively impact the environmental information provided in the reports overall .” Notwithstanding these statements, the Department made no further submissions in support of the position that the information sought was not environmental information and has made no further reference to article 3(1). Whether information is "environmental information" is a threshold issue to be considered when processing an AIE request.
16. In its submissions, Bord na Móna accepted that "...all three of these records constitute information held by DHLGH for the purposes of the AIE Regulations... "
17. In light of the above, the first matter to be determined is whether the cited sections of the Quarterly Reports (the Summary and Sections 2, 7 and 8) is environmental information.
18. Article 3(1) of the AIE Regulations provides that "environmental information" means:
“any information in written, visual, aural, electronic or any other material form on :
a. the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements ,
b. factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment ,
c. measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements ,
d. reports on the implementation of environmental legislation ,
e. cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
f. the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (o) or, through those elements, by any of the matters referred to in paragraphs (b) and (c) ”.
19. The right of access under the AIE Regulations is to information "on" one or more of the six categories at (a) to (f) of the above definition. It is noted that the concept of "environmental information" as defined in the AIE Directive is broad (Mecklenburg at paragraph 19) but there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information.
20. In my view, paragraph (c) of the definition, which provides that "environmental information" means any information on measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements, is applicable to this review.
21. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is "on". Information may be "on" more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated inMecklenburg that the term 'measure' serves "merely to make it clear that the acts governed by the directive included all forms of ‘administrative activity ’" (at paragraph 20, emphasis added). The Irish High Court adopted a similarly expansive approach to the term 'activity' (RTÉ , at paragraph 19).
Whether the Quarterly Reports constitute "environmental information"
22. In considering whether the information in the Quarterly Reports (including those parts which have been redacted) is "environmental information", it is necessary, as a next step, to identify the relevant
"measure(s)" that will affect or will likely affect the environment".
23. The EDRRS scheme (also known as the Peatlands Climate Action Scheme) involves peatlands decommissioning, rehabilitation and restoration measures. The primary aim of the scheme, according to the scheme's section on the Bord na Móna website is "to optimise climate action benefits of rewetting the former industrial peat production areas by creating soggy peatland conditions that will allow compatible peatland habitats to redevelop ". According to the same webpage, the scheme “will deliver benefits for climate action by optimising carbon storage of residual peat, reducing greenhouse gas emissions from cutaway bog and accelerating the development of carbon sequestration ". I find that, based on this narrative, the EDRRS scheme will affect or is likely to affect the environment and therefore is a 'measure' within the meaning of paragraph 3(1)(c) of the definition of environmental information.
24. I must now consider whether the Quarterly Reports, that is, Categories 1 and 2 (Summary and Sections 2, 7 and 8) is information "on" the scheme within the meaning of paragraph 3(1)(c). InHenney (paragraph 43), the court suggests that, in determining whether information is "on" the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and the AIE Directive.
25. According to the Department, the requested information consists in part of operational matters and staffing information which relate to the operation and carrying out of the EDRSS.
26. In light of the foregoing, I consider Categories 1 and 2 (Summary, and Sections 2, 7 and 8 of the Quarterly Reports), together with the balance of the Quarterly Reports to be information "on" the environment within paragraph 3(1)(c) and also in accordance with paragraph 3(1)(e) of the definition ("cost-benefit and other economic analyses and assumptions") as the information is on measures designed to protect elements set out in article 3(1)(a) and/or 3(1)(b).
27. Whilst environmental information can include information that may affect commercial or industrial confidentiality, such information may be exempt from release under article 9(1)(c) of the AIE Regulations. Therefore, I will now consider the Department's reliance on this article to refuse to release information set out in Categories 1 — 8.
Whether the information is exempt from release under article 9(1)(c) of the AIE Regulations The Law
28. As set out above there are eight (8) categories of information that the Department has refused to release to the appellant, in reliance on article 9(1)(c), namely:
1. Summary, Section 2 and Section 8: Progress to date, work content and programme of work
2. Summary and Section 1 and Section 7 of the Reports: Staff movements and Employee numbers
3. Section 2: Total area to be rehabilitated
4. Section 3: Rehabilitation costs per bog
5. Section 3: Information of the percentage of the grant claim spent to date
6. Section 6: Grant Claim
7. Section 9: Risk Management
8. Comments on the EDRRS Quarterly Report Oct — Dec 2021
29. Article 9(1)(c) provides a public authority with a discretionary ground to refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
30. A number of elements are therefore required in order to engage the exemption provided for in this article:
a. The confidentiality must be commercial or industrial;
b. The confidentiality of the information must be provided for by law;
c. The confidentiality must protect a legitimate economic interest.
d. The confidentiality would be adversely affected by disclosure.
31. If article 9(1)(c) is engaged, the public interest balancing test provided for by article 10(3) must be addressed, together with the other matters contained in article 10, where appropriate.
32. While the request was submitted to the Department, detailed submissions were sought and received by this Office from Bord na Móna, the creator and owner of the information requested, as follows.
Position of Bord na Móna
33. Bord na Móna sets out that the information redacted in the Quarterly Reports is commercially sensitive, that the confidentiality of the information is provided for by law, and that it thereby comes within the terms of the exemption in article 9(1)(c) of the AIE Regulations. In particular it notes as follows:
"Further, certain grades of employee are paid based on a Payment by Results (PER) payroll scheme which is based on productivity and completion targets across various aspects of the rehabilitation and decommissioning works. Therefore, the disclosure of information regarding the percentage of work completed during a particular quarter could influence staff bonus payments .
"Any information in relation to decisions regarding prioritisation of certain rehabilitation measures may aid competitors in terms of developing works strategies and plans in respect of future tenders, in order to gain a commercial advantage over Bord na Móna Energy Limited .
"The key metrics breakdown could be used by competitors of Bord na Móna Energy Limited to assist them in design planning for future tenders .
"Information in relation to projections on rehabilitation measures expected to be completed in the future is commercially valuable information. This could be used by Bord na Móna Energy Limited's competitors or suppliers to ascertain Bord na Móna Energy Limited's future requirements for employees, plant, equipment or third-party services, to frame pricing strategies and for the purposes of negotiations to the commercial detriment of Bord na Móna Energy Limited .
"Information as to why lands are constrained is commercially sensitive, as it may lead to unauthorised turf-cutting and to unsubstantiated turbary claims that would take significant time and resources to investigate and may delay the overall project .
"A breakdown of monitoring and verification activities carried out during the quarter is information which could be of assistance to Bord na Móna Energy Limited's competitors in future tender processes in terms of design strategy, works timeframes and costings .
"Details of carbon monitoring measures could similarly be used by Bord na Móna Energy Limited's competitors to frame design strategy in future tender processes .
"A breakdown by category of grant monies claimed could be used by competitors to ascertain Bord na Móna Energy Limited's costs across these various headings, allowing them to price against Bord na Móna Energy Limited in any future tender process .
"Information on sphagnum innoculation [sic] and fertiliser application are components of rehabilitation methodologies and the costs per hectare to complete such measures is commercially sensitive, as it could be used by potential competitors to price against Bord na Móna Energy Limited in future tenders. In addition, such information impacts on change to carbon emission factors, which are commercially sensitive in the event of the potential future sale of carbon credits by Bord na Móna Energy Limited ."
34. Bord na Móna also outlined the factors it considers relevant to the public interest served by disclosure against the interest served by refusal, and argued that, on balance, the public interest served by refusal of access outweighs that served by disclosure. It submitted that the "information that was redacted from the quarterly reports involves information which either alone or in combination, could be used by competitors of Bord na Móna Energy Limited to assist them in design planning and in developing risk mitigation and pricing strategies in respect of future tenders for rehabilitation works of this nature, in competition with Bord na Móna Energy Limited. Any such information which provides a commercial advantage to competitors in future tender processes has a corresponding effect of creating a commercial disadvantage for Bord na Móna Energy Limited." Furthermore, it notes "Bord na Móna Energy Limited is in competition with other entities for such tenders and would be placed at a massive commercial disadvantage in future tendering processes were the redacted information in the EDRRS Quarterly Reports to be made public. This would allow competitors to better develop design, risk mitigation and pricing strategies based on Bord na Móna Energy Limited's actual experience and challenges/risks it faced and therefore, enable them to compete more effectively against Bord na Móna Energy Limited. Information in relation to future projections could be used by competitors to ascertain Bord na Móna Energy Limited's future requirements for employees, plant, equipment or third party services, which information could be used by such competitors to secure the services of seasonal employees, the use of plant/equipment and the provision of services, to the commercial detriment of Bord na Móna Energy Limited. In addition, this information could also be used by Bord na Móna Energy Limited's suppliers/contractors to improve their bargaining position in commercial negotiations, with a corresponding weakening of Bord na Móna Energy Limited's bargaining position with such suppliers/contractors, thereby negatively impacting Bord na Móna Energy Limited's ability to secure value for money... ”
Application of article 9(1)(c) - confidentiality must be commercial or industrial and be provided for by law to protect a legitimate economic interest
35. Bord na Móna cites in support of non-disclosure a number of bases in law which it asserts protects the confidentiality of the information at issue in this case. Those bases are:
a. the contractual agreement between Bord na Móna Energy Limited and the Minister for the Environment, Climate and Communications, as the Quarterly Reports were furnished to NPWS in accordance with the provisions of that agreement, and obligations of confidence apply to all information, documentation and other material received, provided or obtained arising from participation in the agreement;
b. Regulation 49.1 of the Constitution of Bord na Móna Energy Limited, which provides for the maintenance of secrecy and confidentiality by officers of the company of confidential information without authorisation of the board to disclose same;
c. section 32(1) of the Turf Development Act 1998 which, it states, places the protection of confidentiality in respect of Bord na Móna on a statutory footing. The section provides that an officer of the company shall not disclose confidential information acquired during the course of their duties without due authorisation. Bord na Móna notes that "confidential" within the meaning of the section is defined as "that which is expressed by the Company or the subsidiary concerned, as the case may be, to be confidential either as regards particular information or as regards information of a particular class or description".
36. In summary, Bord na Móna submits that the confidentiality protections afforded under statute are "clearly designed to protect the legitimate economic interests of Bord na Móna plc. and its subsidiaries ."
37. The public authority also cites the common law duty of confidence as a further law that protects the confidentiality of the information withheld in this case.
38. I consider that the equitable duty of confidence is the most appropriate basis in law by which Bord na Móna may seek to protect information from release under article 9(1)(c). The Commissioner has discussed in detail the bases in law enumerated above, as well as others, in the decision that issued in appeal OCE-127779-J9Y4Q0 (appeal 127779), including the equitable duty of confidence. As that appeal concerned information that, as in this case, was created and owned by Bord na Móna, I am of the view that it is not necessary to replicate the discussion in that appeal in full here and encourage interested parties to read the cited decision to apprise themselves of the detailed analysis of the bases in law which may be engaged by article 9(1)(c).
39. The equitable duty of confidence is well-established in Irish law and the three elements of a cause of action for breach of that duty are as laid down by the Supreme Court inMahon v Post Publications [2007] 2 ILRM 1, as follows:
a) the information must have the necessary quality of confidence about it;
b) it must be communicated in circumstances of confidence/trust; and
c) it must be wrongfully communicated by the person receiving it or another person who is aware of the obligation of confidence.
40. In its full form the equitable duty of confidence is a cause of action that allows the beneficiary of the confidentiality to prevent a breach of confidentiality, or sue for damages if there has been a breach. While the cause of action will only be complete if all three elements are satisfied and, in particular, there is misuse or threat of misuse of the confidential information, it is nevertheless the case that there is an underlying duty of confidentiality which forms the basis of this cause of action. As such, the first step in the test above is the most important for the purposes of this decision.
41. The equitable duty of confidence is applied in a range of circumstances in Irish law, but it is clear that it can apply in respect of commercial or industrial information. I also accept that, when it so applies, such application may be for the protection of a legitimate economic interest. The equitable duty of confidence is a principle of the common law rather than a legislative provision. However, as it is a principle which is well established and understood in Irish law, I accept that the equitable duty of confidence has a precisely defined scope and is not a 'general legal context', consistent with the requirement set out inFlachglas . This is notwithstanding that an assessment of whether information has the 'necessary quality of confidence' is fact-specific in a given case. Similarly, I accept that the test for whether there is an equitable duty of confidence is objective, such that public authorities are not permitted to determine unilaterally the circumstances in which confidentiality can be invoked, again consistent with the requirement set out inFlachglas .
42. Accordingly, I must consider, in relation to the information at issue: (i) whether the information is in fact protected by the equitable duty of confidence, and (ii) whether Bord na Móna's legitimate economic interests would in fact be adversely affected by the disclosure of the information.
43. I agree with Bord na Móna's contentions in regard to the confidentiality of the information it has redacted, and I am satisfied that Bord na Móna has established that the equitable duty of confidence does act to protect, in accordance with article 9(1)(c) of the AIE Regulations, "commercial or industrial confidentiality" in this appeal. Accordingly, I do not consider it necessary to analyse the other legal bases that Bord na Móna suggests for the protection of that confidentiality, enumerated above.
44. I have given careful consideration to the arguments made in the submissions of all parties concerned as to why the redacted parts of the reports should not be released. I am satisfied the information possesses the necessary quality of confidence such as to attract the protection of the equitable doctrine of confidence and the protection of article 9(1)(c). I am also satisfied that the confidentiality is protecting a legitimate economic interest, for the reasons given below.
45. In its submissions, Bord na Móna has explained that its economic interests derive from its being a commercial semi-state body, that it and its subsidiaries are expected to operate within commercial markets in competition with non-semi-state bodies and are expected to be profit-generating and pay dividends to the Exchequer. It maintains that it is in competition with other commercial entities in the tendering for commercial projects and that its economic interests, in particular its ability to tender for work in the future, would be significantly harmed by the release of commercially sensitive information related to its activities. I agree with this contention and consider that in general terms, Bord na Móna has thereby satisfied the requirement to show that the confidentiality is protecting its legitimate economic interests (Bord na Móna's ability to compete with competitors).
46. I analyse in brief below each of the eight sections of the quarterly reports.
(i) Category 1 : Summary, Section 2 and Section 8; Progress to date, work content and programme of work. Bord na Móna has stated that information on progress of rehabilitation and decommissioning works to date, including details of percentage of works completed and issues that hindered progress or which will/may affect future progress is confidential and such information could be used by potential competitors in terms of developing design and risk mitigation strategies, with a view to gaining a commercial advantage over Bord na Móna and also affording them an opportunity to exploit such identified risks, ultimately to the commercial detriment of Bord na Móna. I note information contained in this category includes two columns containing information extracted from the EDRRS Financial Model, which the Commissioner has already confirmed in appeal 127779 may be withheld by the Department. Having reviewed the information in each of the three records pertaining to this category of information, I accept this information possesses the necessary quality of confidence to attract the protection of the equitable doctrine of confidence and the protection of article 9(1)(c).
In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interests that the confidentiality is designed to protect. Having carefully considered the contents of the records, I accept the arguments put forth and set out above as to why release of this information would have an adverse effect on the legitimate economic interests of Bord na Móna.
(ii) Category 2 : Summary and Section 7; Staff movements and Employee [numbers]. The redacted information includes the employee group, employee type and maximum number of employees in that quarter. The maximum employee total number is not redacted and is stated in full. Bord na Móna has stated that a breakdown of employment numbers across various groups and types of employees could be used by a competitor in respect of future tenders to inform them as to numbers of staff required for projects of this nature and develop employee costings. It states that Bord na Móna has built up a team of people to deliver the rehabilitation scheme based on its experience in this area and the experience of such individuals would be of interest and assistance to competitors. In addition, it states that a breakdown of employees by grade which allows one to ascertain the movements of employees from one area of the business to another when comparing the various quarterly reports against each other, could have an impact in terms of discussions with union representatives. I accept that the details of the employee groups, employee type and maximum numbers are confidential information in the context of these records.
In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interests that the confidentiality is designed to protect. Having carefully considered the contents of the records, I accept the arguments put forth and set out above as to why release of the information contained in category 2 would have an adverse effect on the legitimate economic interests of Bord na Móna.
(iii) Category 3 : Section 2; total area to be rehabilitated. I consider the information in Section 2 to be confidential in character. While I acknowledge that much of the information in Section 2 has not been redacted and has been released, I note the view of Bord na Móna that “information that was redacted from the quarterly reports involves information which either alone or in combination, could be used by competitors of Bord na Móna Energy Limited to assist them in design planning and in developing risk mitigation and pricing strategies in respect of future tenders for rehabilitation works of this nature, in competition with Bord na Móna Energy Limited. ”
In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interests that the confidentiality is designed to protect. Having carefully considered the contents of the records, I accept the arguments put forth and set out above as to why release of the information contained in category 3 would have an adverse effect on the legitimate economic interests of Bord na Móna.
(iv) Category 4 : Section 3; Rehabilitation costs per bog. The redacted information in this section comprises the whole of Table 3.1 in Quarterly Report no. 1 (with fewer redactions in Reports 2 and 3) and accompanying narrative. Bord na Móna states that information regarding rehabilitation costs (either overall or by each individual bog), and which includes a comparison of projected rehabilitation costs against estimated costs and grant funds claimed by reference to a percentage of the total costs, could be used by competitors in terms of developing a pricing strategy to price for similar work, to the commercial disadvantage of Bord no Móna Energy Limited.
I accept that the details of rehabilitation costs per bog is confidential information in the context of these records. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interests that the confidentiality is designed to protect. Having carefully considered the contents of the records, I accept the arguments put forth and set out above as to why release of the information contained in category 4 would have an adverse effect on the legitimate economic interests of Bord na Móna.
(v) Category 5 : Section 3; information of the percentage of the grant claim spent to date. I have commented on the grant claim information in the paragraph above. Bord na Móna states that a “breakdown by category of grant monies claimed could be used by competitors to ascertain Bord na Móna Energy Limited's costs across these various headings, allowing them to price against Bord na Móna Energy Limited in any future tender process .”
I accept that the details of grant claim information are confidential information in the context of these records. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interests that the confidentiality is designed to protect. Having carefully considered the contents of the records, I accept the arguments put forth and set out above as to why release of the information contained in category 5 would have an adverse effect on the legitimate economic interests of Bord na Móna.
(vi) Category 6 : Section 6; Grant claim. This information in this section comprises narrative, Table 6.1 and (in the second and third reports) a graph (Figure 6.1). Almost all of this information has been redacted. Bord na Móna states that a breakdown by category of grant monies claimed could be used by competitors to ascertain Bord na Móna Energy Limited's costs across these various headings, allowing them to price against Bord na Móna Energy Limited in any future tender process. I accept this category of information to possess the necessary quality of confidence to attract the protection of the equitable doctrine of confidence and the protection of article 9(1)(c).
In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interests that the confidentiality is designed to protect. Having carefully considered the contents of the records, I accept the arguments put forth and set out above as to why release of the information contained in category 6 would have an adverse effect on the legitimate economic interests of Bord na Móna.
(vii) Category 7 : Section 9; Risk management. Bord na Móna has stated that, “Information surrounding risk ratings and new risks identified during the course of the rehabilitation and decommissioning works, would aid Bord na Móna Energy Limited's competitors for future tenders in terms of assisting them in developing a works strategy and informing costings and time schedules. ” I accept this category of information to possess the necessary quality of confidence to attract the protection of the equitable doctrine of confidence and the protection of article 9(1)(c).
I accept that the details set out in category 7 pertaining to risk management is confidential information in the context of these records. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interests that the confidentiality is designed to protect. Having carefully considered the contents of the records, I accept the arguments put forth and set out above as to why release of the information contained in category 7 would have an adverse effect on the legitimate economic interests of Bord na Móna.
(viii) Category 8 : Comments on the EDRRS Quarterly report Oct — Dec 2021. The Department explains in its submissions that the version of this document that existed at the time of the request was held by the Department, that the side comments were made by the Department and that they related primarily to the editing and formatting of the document for the purpose of returning the document to Bord na Móna for consideration before production of the final draft. Having reviewed the comments, which have only been made in the third quarterly report, I am satisfied that, as they are intimately related to the subject matter of the substantive narrative of the document, they can be considered to constitute confidential information under article 9(1)(c).
In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interests that the confidentiality is designed to protect. Having carefully considered the content of the comments, I accept the arguments put forth and set out above as to why release of the information contained in category 8 would have an adverse effect on the legitimate economic interests of Bord na Móna.
47. In respect of the redacted information, as I have said above, it must also be shown that the protection of article 9(1)(c) exists to protect a legitimate economic interest. To this matter I now elaborate on further.
Adverse effect on legitimate economic interests
48. Bord na Móna submits,inter alia , that the disclosure of the information that has been redacted in the above Categories would lead to significant negative consequences for Bord na Móna Energy Limited, including commercial disadvantage when tendering for similar works for third parties, weakening of bargaining position vis-à-vis third-party suppliers and contractors and negative consequences with regard to the employee/employer relationship and any potential future redundancies.
49. The Department submits,inter alia , that the disclosure of the redacted information in the above categories could influence bonus payments, that operational decisions may be sensitive as regards Bord na Móna's discussions with its employee Union representatives, that if the Bord na Móna cost per hectare were in the public domain it would give Bord na Móna's competitors in such tenders a competitive advantage, that the flow of anticipated versus actual income into the company at a particular point in time could place Bord na Móna at a commercial disadvantage and that the release of financial information broken down could place Bord na Móna at a commercial disadvantage if it went to tender for similar restoration work in the future.
50. Having considered the submissions made by each public authority and having reviewed the information, I am satisfied that disclosure of the information would adversely affect the legitimate economic interests of Bord na Móna. Those interests include its commercial activities in tendering for projects in competition with other commercial operators who, were they to come to learn of the information contained within the redacted information, would be placed in a competitively advantageous position vis-à-vis Bord na Móna which, conversely, would be put at a corresponding disadvantage. The information contains financial and operational details of the EDRRS scheme which would benefit its competitors and place Bord na Móna at a subsequent disadvantage were it to be released. For this reason, the confidentiality sought is to protect those legitimate economic interests. Accordingly, I find that article 9(1)(c) applies to the redacted information.
51. Having found that article 9(1)(c) applies to the information indicated above, I am required to consider whether the public interest served by disclosure of the information sought outweighs the interest served in refusal, in accordance with article 10(3).
Article 10(3)
52. Articles 9(1)(c) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations, provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. I am satisfied that article 10(1) does not apply in this case. 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.
53. 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.
54. 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 in respect of commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
55. I have carefully considered the submissions from the Department and Bord na Móna in relation to the public interest balancing test. I have also carefully considered the appellant’s comments in respect of the public interest in release of the information at issue. These points include:
56. I have also considered the age and nature of the information at issue. The three reports comprehend information that is relevant to the operation of the EDRRS in the final three trimesters of 2021, a number of years ago now. The overall objective of this plan is to contribute to a sustainable, equitable and green economy, as can be seen in the Government's publication, Ireland's National Recovery and Resilience Plan . At page 20, this publication notes, moreover, that the EDRRS will be supported in its first year by another publicly supported fund, the Climate Action Fund. The funding of projects such as the EDRRS by monies that emanate ultimately from the taxpayer tends to give support to the argument that details of such projects should, subject to necessary commercial confidentiality, be in the public domain. As stated by the appellant in its internal review request, "The scale of the project (Euro 108m) means there is public interest in transparency on... where the funds are spent ".
57. The redacted information contained within the records consists of financial and operational information which is commercially sensitive. I accept that Bord na Móna is engaged in commercial activities and that it is in competition with other actors in the sphere in which it operates and that such actors could gain significant competitive advantages by learning of the contents of these redacted categories. I accept also that they contain sensitive information relating to income and expenditure and employee and contractor type engaged by Bord na Móna. I accept also that the release of these categories would serve as useful information for Bord na Móna's competitors and would undermine its competitiveness in tendering processes, and that suppliers to and contractors engaged by Bord na Móna could be dissuaded from further involvement with its undertakings, if costings related to those parties were disclosed, at the same time as weakening Bord na Móna's negotiating position with such parties.
58. I note that the Department has disclosed a substantial proportion of the records at issue. To my mind, this serves the public interest and creates transparency which allows the public to gain an understanding of the Reports provided by Bord na Móna to NPWS in respect of the EDRRS.
59. The exception provided for in article 9(1)(c) of the AIE Regulations is designed to protect commercial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. In the circumstances of this case, I am conscious that the disclosure of the redacted information would have an adverse impact on legitimate economic interests identified and would outweigh the additional benefit in disclosing the redacted information in the sections at issue.
60. I have weighed the factors for and against disclosure. In light of the above and having examined the redacted information, I am of the view that the interest in refusal outweighs the public interest in disclosure. Accordingly, I find that the Department was justified under article 9(1)(c) in refusing access to the information at issue.
61. In summary, I determine that the withheld information is protected from disclosure under article 9(1)(c) of the AIE Regulations. The interest in refusal outweighs the public interest in disclosure.
62. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I affirm the decision of the Department.
63. 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