Decision
Dr Fred Logue and CIE Group
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143997-R9Q9V8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143997-R9Q9V8
Published on
Whether CIE Group was justified, under article 9(1)(c) of the AIE Regulations, in refusing access to information sought by the appellant
29 February 2024
1. On 26 September 2023, the appellant submitted an AIE request to Irish Rail (Iarnród Éireann/IÉ) for the following information:
“1) Irish Rail’s file in relation to a proposed telecommunications mast for Laytown Railway Station Co Meath, to include:
a) All correspondence with the mast developer and its agents
b) Copies of any agreement, MoU, Heads of Terms or similar in relation to the proposed mast
c) Copies of any discussions relating to alternative sites along the rail line
2) Copies of any agreements, MoU’s or other documents recording general agreement or non-binding terms between Irish Rail and developers of telecommunications masts and their agents.”
2. On 26 September 2023, Irish Rail acknowledged receipt of the appellant’s request and advised that a response would be issued “no later than 30 days from receipt of request”. That same day, it issued a further communication to the appellant advising that the request “falls under CIE group property who are best placed to provide [the appellant] with a response”. The appellant was advised that his original request had been forwarded to CIE Group and that “[CIE Group] should acknowledge same with [the appellant] shortly.”
3. On 26 October 2023, the appellant contacted Irish Rail seeking an internal review on the basis of a deemed refusal as no response to his request had been received within the relevant time limit, including no response from CIE Group (Córas Iompair Éireann/CIÉ), to whom the appellant understood his request had been transferred to.
4. Later on 26 October 2023, CIE Group contacted the appellant and apologised for the delay in responding to his request, citing a misdirection of the original correspondence, and requested an extension of the response deadline until 17 November 2023. CIE Group also requested the appellant to consider refinement of part 2) of his request in order to process the request “more efficiently and effectively”, noting that this part of the request referred to “documents spanning approximately 25 years and [would] require significant time and resources to compile and review.”
5. The appellant responded to CIE Group on 26 October 2023 stating that he was not prepared to extend the original response deadline, and given that he had already sought an internal review, he would consider the decision of CIE Group to be provided by 17 November 2023 as an internal review outcome. The appellant also advised that he was “prepared to refine the second part of the request to cover only those documents that remain in force (i.e. have not been terminated or replaced) and/or remain in use.”
6. CIE Group issued its internal review outcome on 20 November 2023, which included details of the records identified in response to the appellant’s (refined) request. The Schedule of Records provided by the Internal Reviewer identified nine (9) individual records (comprising 313 pages in total), all of which were listed as refused for release on the basis of article 9(1)(c) of the AIE Regulations, with the decision stating that “information contained within is being withheld due to commercial or industrial sensitivity, where such confidentiality is provided for in national of Community law to protect a legitimate economic interest”. The Schedule of Records did not identify which elements of appellants’ two-part request had been addressed.
7. The appellant brought an appeal to this Office on 20 November 2023.
8. I am directed by the Commissioner to conduct a review of this appeal. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the correspondence between CIE Group and the appellant as outlined above and I have considered the content of submissions made by the appellant and CIE Group to this Office on the matter. I have also conducted a cursory examination of the records made available to this Office. 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’).
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Position of the Appellant
10. This Office received submissions from the appellant on 12 December 2023 in which he requests the Commissioner to annul the decision of CIE Group in its entirety based on a lack of justification for same, and to direct release of the information concerned.
11. Regarding part 1) of the request, the appellant submits that it is “implausible that CIÉ/Irish Rail have no information relating to a planning application for a telecoms mast for Laytown Railway Station, Co Meath” and seeks the identification of all relevant information.
12. Regarding part 2) of the request, the appellant submits that all information has been refused on the basis of article 9(1)(c) of the AIE Regulations, without any explanation or reference to the contents of each record. The appellant also submits that CIE Group has given no stated consideration to the required public interest test.
Position of CIE Group
13. This Office received correspondence from CIE Group on 31 January 2024, categorised as a “joint submission on behalf of both CIÉ and IÉ”, explaining that “existing licence agreements involve both CIÉ as landowner and IÉ as railway operator”. These submissions maintain that article 9(1)(c) is applicable to all withheld information and furthermore that “the public interest in refusal outweighs the public interest in disclosure”. The submissions were accompanied by a revised Schedule of Records for the purposes of the Commissioner’s review and a copy of the records listed in this schedule were also furnished.
14. Regarding part 1) of the request, CIE Group submits that it provided the appellant with one (1) record relevant to this part of his request, that being a copy of letter dated 7 September 2022 from CIÉ giving On Tower Ireland Limited, a Cellnex Company, consent to make a planning application for telecommunications equipment at Laytown Railway Station. Whilst I am satisfied that the appellant is in possession of this record, based on the contents of his submissions to this Office, I note that this record was not listed on the Schedule of Records provided to the appellant at internal review stage and therefore it is unclear whether this record was released in response to this AIE request or some other means.
15. Additionally, in relation to part 1) of the request, CIE Group submits that it has identified additional information within scope of the appellant’s request, being “some email correspondence between CIÉ and Cellnex Telecom” and states that “having reviewed these records, CIE is of the view that insofar as they contain environmental information, the exemption in Article 9(1)(c) applies to the records.” This Office has not been provided with a copy of these additional records, nor are they referenced on the revised Scheduled of Records provided for review by the Commissioner.
16. Regarding part 2) of the request, it is noted that the revised Schedule of Records provided to this Office identifies seven (7) records (comprising 253 pages in total) relevant to this part of the appellant’s request. CIE Group submits that two (2) of the records (comprising 60 pages in total), originally identified at internal review stage, are not provided as “there is no current licence agreement is place”.
17. In its submissions to this Office, CIE Group submits arguments as to why it considers that disclosure of information engages the exemption provided by article 9(1)(c) of the AIE Regulations.
18. CIE Group submits that the information is commercial or industrial in nature. It argues that the Licence Agreements and the correspondence between CIÉ/IÉ and Cellnex relate to “negotiations and contracts which provide an income stream for CIÉ and IÉ, and which provide essential telecommunications infrastructure for the telecoms providers” and that the Licence Agreements “detail licence fees payable by the telecommunications companies”.
19. CIE Group submits that some of the licence agreements concerned contain confidentiality clauses and non-disclosure agreements (NDAs), which it contends “Irish contract law recognises and enforces… provided that they do not purport to override national or Community legal obligations”. It also submits that for those Licence Agreements which do not contain confidentiality clauses, “the equitable duty of confidence applies”. It also submits that the correspondence between CIÉ/IÉ and Cellnex attracts confidentiality protected by law and in this regard cites section 22 of the Transport (Re-Organisation of Córas Iompair Éireann) Act 1986.
20. CIE Group submits that “the confidentiality embodied by the Licence Agreements and NDAs serves to protect the legitimate economic interest of all parties to these agreements by inter alia: (i) Protecting their negotiating and bargaining positions; (ii) Protecting trade secrets; and, (iii) Protecting the confidentiality of their financial commitments”. In terms of the adverse effect of disclosure, CIE Group submits that “the confidentiality of the Licence Agreements and negotiations would be entirely lost and undermined by disclosure, and the legitimate economic interest protected by the confidentiality in question would be destroyed.”
21. In accordance with article 10(3) of the AIE Regulations, CIE Group outlines the factors it considers which relate to the public interest served by disclosure against the interest served by refusal and argues that, on balance, the public interest served by refusal of access outweighs that served by disclosure. CIE Group submits that it “would severely prejudice the ability of CIÉ and IÉ to enter into commercial relationships with third parties in future as they would be unwilling to take the risk that their confidential information and commercial information might be released to the public”. CIE Group contends that “it would clearly not be in the public interest if CIÉ and IÉ were unable to enter into commercial relationships with third parties” and furthermore, that “there is a legitimate public interest in persons being able to conduct commercial transactions with public authorities without suffering adverse effects.”
22. CIE Group also submits that “if there is any doubt regarding the application of the Article 9(1)(c) exemption in this case justifying refusal to disclose the information concerned, the commercial companies who entered into the Licence Agreements should each be consulted.”
23. 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.
24. This review is concerned with whether CIE Group is entitled to refuse access to information requested by the appellant on the basis of article 9(1)(c) of the AIE Regulations.
25. CIE Group contends that all information withheld in relation to part 1) and 2) of the appellant’s request may be refused under article 9(1)(c) of the AIE Regulations. This provision states:
“9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect…
(c) commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.”
26. The decision provided to the appellant in this appeal is notable for its brevity and complete absence of reasons. The decision itself does not refer to any provisions of the AIE Regulations, but states that the internal reviewer has decided to affirm the deemed refusal. The Schedule of Records is where reference is made to article 9(1)(c) of the AIE Regulations, but no explanation is given as to how this might apply to the information sought. This is in stark contrast to the detailed submissions provided by CIE Group to this Office. These submissions provided considerably more reasoning regarding its application of the exemption under article 9(1)(c), in comparison with a clearly observable “blanket approach” to refusal of information at internal review stage, which did not demonstrate that it had given adequate consideration to the information at issue and to the requirements of article 10. Whilst I acknowledge that CIE Group did give consideration to article 10(3) in its submissions to this Office, it does not appear to have considered the requirements of article 10(4) and has also proffered no view as to whether partial disclosure is possible in line with article 10(5) of the AIE Regulations.
27. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
28. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
29. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
30. It is clear from my review of the decision-making records in this appeal that CIE Group has not complied with its duties to give reasons in respect of this request. Indeed, given the stark contrast between the decision issued by CIE Group and the submissions received by this Office, I cannot be certain whether the reasons contained in the submissions were in fact in the mind of the internal reviewer when making his decision. It is therefore my view that is not appropriate for me to engage in further analysis with regard to the application of article 9(1)(c) at this time. As article 12(5) of the AIE Regulations makes clear, the role of this Office is to review the public authority's internal review decision and to affirm, annul or vary it. It is not the role of this Office to examine information on behalf of CIE Group and effectively become the communicator of a first instance decision to the appellant.
31. Rights under the AIE regulations are very important and there is a clear duty on public authorities to comply with their obligations, including the obligation to give reasons. The European legislature could not be clearer on the importance of access to information. Recital 5 of the Open Data Directive (2019/1024) states that “Access to information is a fundamental right.” That Directive links access rights to the fundamental right to freedom of expression, protected by the Charter of Fundamental Rights. Freedom of expression is also protected by the Irish Constitution and the European Convention on Human Rights.
32. The manner in which this request was handled and the failure of CIE Group to provide any information or any adequate reasons to the appellant has meant that the appellant had no opportunity to make a meaningful request for internal review, and could not make a detailed appeal to this Office. This office has a significant backlog of appeals and it will be impossible to clear the backlog if public authorities don’t issue comprehensive and lawful first instance decisions that respect the fundamental rights of applicants. My options under the AIE Regulations are limited and it is not tenable for this Office to review in substance all environmental information where public authorities do not make lawful and sufficiently reasoned first instance decisions.
33. In light of the above, I cannot find that CIE Group’s reliance on article 9(1)(c) of the AIE Regulations is justified and I will annul the internal review decision of CIE Group. However, in the circumstances of this case, particularly in light of the lack of clarity regarding the information that actually falls to be considered for release, and the presence of third party information where no third parties appear to have been consulted or notified by CIE Group when processing the request, l do not believe that it is appropriate for this Office to direct the release of information. The Schedule of Records indicates a significant volume of relevant information, and it would take a considerable amount of time for my Office to review this information, seek further submissions from both parties and potentially to consult with relevant third parties. I acknowledge that this will come as a disappointment to the appellant, but I consider that this is the most appropriate decision in the circumstances of this case.
34. In my view, the legal effect of this decision to annul the internal review decision made on 20 November 2023 is that CIE Group must issue the appellant with a new internal review decision under article 11 of the AIE Regulations. Article 12(3) of the AIE Regulations allows for a decision made by a public authority under article 11 of the AIE Regulations to be appealed to my Office. Article 12(5) of the AIE Regulations provides that I may review the decision of the public body and affirm, vary or annul the decision concerned, specifying the reasons for my decision. I therefore consider that where I annul a decision of a public authority, this only has the effect of annulling the internal review decision, not the original decision.
35. While the applicant is not required to make a new request for internal review, I would suggest that he takes the opportunity to make a further submission to CIE Group, having reviewed the matters set out in this decision. It may be that this will result in the release of some or all of the information. But even if access to the information is refused in its entirety, the issues between the parties will become clearer and my Office will be in a position to process the request in a more efficient manner. I would draw CIE Group’s attention to the provisions of article 10 of the Regulation, especially the need to carry out a public interest balancing test in article 10(3), the need to interpret grounds for refusal restrictively in article 10(4) and the possibility of partial release in article 10(5)
36. While the appellant has specifically requested that the matter is not remitted to CIE Group, given the matters set out above, I consider that the AIE regime is best served by remittal in this case. If CIE Group issue further decisions without adequate reasons in respect of this request, I may have to consider simply ordering release of the information.
37. Should CIE Group wish to rely on article 9(1)(c) in processing a new decision, I would remind it that it must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, and thereby its confidentiality, would be adversely affected by disclosure of the information at issue. Furthermore, if relying on article 9(1)(c), CIE Group must to set out, to the requestor, the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the interest identified.
38. In addition, article 9(1)(c) 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. 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 and 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.
39. Finally, the appellant contends that CIE Group has not identified all relevant information relating to Part 1 of his request. In carrying out a new internal review decision-making process, CIE Group should provide the appellant with information on the steps it took to identify the relevant information.
40. If it is the case that grounds for refusal are not found to apply to the requested information, the information should be released.
41. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the internal review decision of CIE Group. The result of this decision is that a new internal review process should be carried out by CIE Group under article 11 of the AIE Regulations.
42. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
on behalf of the Commissioner for Environmental Information