Decision
Messrs X and Cavan County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143899-C5W0M2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143899-C5W0M2
Published on
Whether the Council conducted adequate searches such as to identify all information relevant to the appeal, in accordance with the implicit requirement of article 7(5), and released such information; and whether it was justified in withholding information on the basis of legal professional privilege under article 9(1)(b) of the AIE Regulations.
22 November 2024
1. The appeal relates to a request for information submitted to the Council on 12 June 2023, concerning information in relation to Cavan County Planning reference 21528, Killymooney Lough/Killynebber Wetlands, lands at Aghnaskerry/Aughnaskerry and Tullymongan Lower owned by Mr Darren Sherry, textually as follows:
“Request 1:
•“All correspondence between Eve Harrison (Area planner) and the Environmental Section regarding Planning Application Reference 21528.
•“Please include emails, intranet correspondence, documents from document management systems used by Cavan County Council, collaboration platform communications, and video conferencing minutes or recordings. Please include any emails, memos or other forms of communication exchanged between these parties that reference or discuss "Friends of Killymooney" "Friends of Killymooney Lough", "Galetech Sustainable Living" or "Mr Darren Sherry"
“Request 2 :
•“All internal correspondence between Mr. Nicholas O’Kane, Senior Planner, and Miss Eve Harrison, Area Planner, regarding Planning Application Reference 21528.
•“Please Include emails, intranet correspondence, documents from document management systems, collaboration platform communications, and video conferencing minutes or recordings. Please include any emails, memos or other forms of communication exchanged between these parties that reference or discuss "Friends of Killymooney" "Friends of Killymooney Lough", "Galetech Sustainable Living" or "Mr Darren Sherry "
“Request 3 :
•“Any correspondence from any member of Cavan Planning Department, including Miss Eve Harrison and Mr. Nicholas O’Kane, with the Heritage Officer, Miss Anne-Marie Ward and Cavan Tourism Officer, Miss Joanne Hayes.
•“Please Include emails, intranet correspondence, documents from document management systems, collaboration platform communications, and video conferencing minutes or recordings. Please include any emails, memos or other forms of communication exchanged between these parties that reference or discuss "Friends of Killymooney" "Friends of Killymooney Lough", "Galetech Sustainable Living" or "Mr Darren Sherry "
“Request 4 :
•“All correspondence between Mr. Nicholas O’Kane, Senior Planner, or any member of Cavan Planning Department, and Mr. Tommy Ryan, Chief Executive of Cavan County Council, Mr. Eoin Doyle, Director of Services, Mr. Paddy Connaughton, Director of Services responsible for Transportation, Environment and Water Services, and Mr. Brendan Jennings, Director of Services for Planning, Community, and Economic Development.
•“Please include emails, intranet correspondence, documents from document management systems, collaboration platform communications, and video conferencing minutes or recordings. Please include any emails, memos or other forms of communication exchanged between these parties that reference or discuss "Friends of Killymooney" "Friends of Killymooney Lough", "Galetech Sustainable Living" or "Mr Darren Sherry "
“Request 5 :
•“All correspondence between Cavan County Council Planning Department, including Mr. Nicholas O’Kane (Senior Planner), Miss Eve Harrison (Area Planner), and Mr Darren Sherry or any representative or agent acting on behalf of Mr. Darren Sherry or Gale Tech Sustainable Living. This includes any employee of Michael Fitzpatrick Architect regarding Planning Application Reference 21528.
•“Please include emails, intranet correspondence, documents from document management systems, collaboration platform communications, and video conferencing minutes or recordings. Please include any emails, memos or other forms of communication exchanged between these parties that reference or discuss "Friends of Killymooney" "Friends of Killymooney Lough", "Galetech Sustainable Living" or "Mr Darren Sherry "
“Request 6 :
•“Any representation or lobbying information carried out by any member of Cavan County Council or any TD from the Cavan-Monaghan constituency acting on behalf of Mr. Darren Sherry, Galetech Sustainable Living, or any associated parties with an interest in Planning Application Reference 21528. Please include any emails, memos or other forms of communication exchanged between these parties that reference or discuss "Friends of Killymooney" "Friends of Killymooney Lough", "Galetech Sustainable Living" or "Mr Darren Sherry "
“Request 7
• “_Any correspondence emanating from Miss Eve Harrison, Area Planner recording the zoning of land and proposed rezoning under the Drafted Development Plan in relation to Planning Application Reference 21528. Please include any emails, memos or other forms of communication exchanged between these parties that reference or discuss "Friends of Killymooney" "Friends of Killymooney Lough", "Galetech Sustainable Living" or "Mr Darren Sherry"
“Request 8
• “Any correspondence between Cavan Planning Department/ Planning Enforcement team and any employee(s) of Cavan County Council which mention the “Keyword term” “Friends of Killymooney Lough ” or “Friends of Killymooney ”. Please do not include any emails or correspondence that Friends of Killymooney have sent the Planning Department of Cavan County Council. Please include any emails, memos or other forms of communication exchanged between these parties that reference or discuss "Friends of Killymooney" "Friends of Killymooney Lough", "Galetech Sustainable Living" or "Mr Darren Sherry "”
[Emphasis in all instances made by the appellants].
2. On 27 July 2023, 15 days after the due date, the Council issued its decision letter, to which it attached information comprising a zipped folder with records that had been redacted containing personal data of third parties and Outlook email folders with instructions to access the files contained therein. The letter did not aver to the request having been granted or part-granted, it merely “attached Records for [the information of the appellants].”
3. On 8 August, the appellants sought an internal review of the Council’s first instance decision, stating in preliminary fashion the following:
“The AIE request, which covered a wide array of information related to planning application 21528, crucially lacks any major information on substantial aspects of the planning process relating to the application. Moreover, despite the ownership of the land in question by Mr Darren McSherry and Gaeltech Sustainable Company and their extensive work on the site since the acquisition, the assertion that no meetings or communications have taken place regarding the planning application is, in my view, not credible. This raises significant doubts about the integrity and completeness of the information provided in the AIE response.
“Of particular concern is the reference to the County Council meeting documented in the Anglo Celt report of 13th May 2021, which highlights the efforts made by Head Planner Mr. Nicholas O’Kane to persuade councillors against the rezoning of the land. According to the report, Mr. O’Kane is reported to have secured investment for the development of a park with paths, a jetty, and seating, while asserting that the “balance struck is the right one”. It is reasonable to assume that such a stance would have triggered internal deliberations between Mr. O’Kane and his colleagues, and I strongly believe that this interaction warrants greater transparency in the AIE response.
“Considering the significance of the planning application and its potential impact on our community’s environment, the AIE response must comprehensively address all aspects of the process. Regrettably, the information provided appears superficial, often duplicating reports already accessible on the planning portal and lacking critical assessment, evaluation, and appraisal of an extensive further information request concerning the application.”
The appellants went on to give reasons for the internal review request associated with each of the eight items of their original request, textually as follows (I have omitted the transcription of each of the original eight items for the sake of succinctness, for reference see paragraph 1 above):
“Request 1:
“Response :Correspondence provided does not include any assessment or information regarding questions that arose from further wildlife surveys and assessments of the subject site.
“Request 2:
“Response :Information provided is superficial and includes the transfer of reports that are already available online. No critical appraisal or assessment of the extensive further information is presented in the correspondence received.
“Request 3:
“Response :No information is provided. In the environmental report, by Mr. Trainor, which only appeared on Cavan planning portal after June 9, 2023, it concludes that planning should be considered by both the Head Planner and Heritage Officer concerning the integrity of the SAC/SPA sites. No correspondence has been forthcoming pertaining to this process.
“Request 4:
“Response :Superficial information provided. It is not credible to suggest that a planning application, particularly with plans for a Community Park, jetty is not discussed at a senior management level within Cavan County Council. Significant development has occurred at this site since Mr. Sherry took ownership.
“Request 5:
“Response :No correspondence with the owner of the subject lands was provided despite extensive works at this site and the plans for a community park. It is not credible to claim no correspondence or minutes from meetings exist .
“Request 6:
“Response :Not credible that subject sites have not been the subject of lobbying from local representatives, given the subject site has been rezoned. Local representatives have told members of our group that the said developer applied substantial pressure around the time of the development plan voting to themselves and others.
“Request 7:
“Response :Not credible that no information exists given the technical, legal issues of rezoning and the planning process. Mr. Harrison drafted the planner’s report for Further Information; it is not credible that no internal communication exists on this aspect, particularly between senior planners. Considering a new draft Development Plan had been adopted at the time of Ms. Harrison’s planner’s report, it is very reasonable to presume that discussion and appraisal of this decision took place.
“Request 8:
“Response :Friends of the Environment sent a legal letter due to works taking place at the subject site. No correspondence from the Head Planner has been included, senior managers within CCC responding to local people’s concerns.
“In conclusion, I firmly believe that addressing these requests will provide crucial insights into the planning application process and ensure transparency and accountability within the Cavan County Council Planning Department. I sincerely hope this internal review will rectify the gaps in the initial AIE response.”
4. On 11 August 2023, the Council acknowledged receipt of the internal review request. The email acknowledgement, however, contained an important addendum from the internal reviewer, textually as follows:
“Given that your appeal relates to information which Cavan County Council have not released on the basis that it does not exist or was not within the scope of your original request i.e. directly relating to…Cavan County Council Planning reference 21528 and An Bord Pleanála appeal PL02.313863; It may be argued that your original request also included [a request] for information relating to the zoning of the site in question. I am assuming that your request relates also [the Council’s emphasis] to the zoning of the site in question. It is on this basis I am applying Article 7. (2) (b) of the AIE Regulations and I am seeking the two-month period for reply. If this is not the case, please advise [the Council’s emphasis].”
5. The email elicited a prompt response on the same day from the appellants who contended that “the initial request was clearly outlined” and that its intent “was straightforward: to gather information pertaining to the zoning, rezoning, and communications related to Planning Application Reference 21528 …. The information [pertaining] to discussions about zoning…is inherently linked to the very essence of Planning Application Reference 21528. It's disheartening to feel that [the] request has been misconstrued as requiring a broader scope, when [the] focus was always on the specific matters associated with the development plan, the zoning and re zoning of lands all of which are pertinent to planning application 21528.”
6. This response, in turn, led to a further communication to the appellants from the internal reviewer, again on the same day, which stated “whereas the original response [the Council’s original decision] assumed that [the original request] related only to planning reference 21/528…[these] are two distinct queries” (a reference to the distinction between information that might be sought on the planning application and information that might be sought on the zoning and/or rezoning of the land in question) and that “rightly or wrongly”, this had been the interpretation made, that is, that in the original decision, the decision-maker had confined searches to information solely related to the planning application and had not conducted searches for information relating, in addition, to the zoning and rezoning of the land the subject of the planning application. It appears from the foregoing that the Council viewed the text of the internal review request to constitute a new request seeking a broader range of information that in turn would require a broader search to be conducted by the Council. I shall comment on this further below at paragraphs 15 and 16.
7. On 28 September 2023, the Council issued its internal review of the original decision, varying the latter. The letter stated that in its original decision, the Council had confined the scope of the request solely to records relating to planning decision reference 21/528, whereas the internal review decision broadened the scope of the request to include all additional records “relating to the zoning of the subject lands.” The letter confirmed that consideration had been given to the full remit of records relative to the above planning decision and its related zoning, and part-granted access to all of the relevant records. It concluded by stating that “the Council is now providing a full and adequate reply to the scope of the original request.” A schedule accompanied the letter, together with an electronic link each to (i) sets of records and (ii) minutes of Council meetings, respectively. The schedule noted that all records had been granted, with the exception of one set of records which had been part-granted on the basis of article 8(a)(iv) of the AIE Regulations. Though it was not noted on the schedule which records these were, it was clarified by the Council in later correspondence that two records were withheld on the basis of “legal professional privilege”.
8. Following the internal review decision, and this Office not having received an appeal from the appellants within the one-month period stipulated in the AIE Regulations for such purpose, it was the understanding of this Office that the appeal had been resolved to their satisfaction, whereby the case file was closed and the parties were notified accordingly, on 29 September 2023.
9. The appellants subsequently made contact with this Office with a view to reopening the appeal, as they were not satisfied with the information that had been provided to them by the Council. The Commissioner has the authority, under article 12(4) of the AIE Regulations, when satisfied in the circumstances of a particular case that it is reasonable to do so, to extend the time for initiating an appeal. In this case, he made the decision to exercise his authority in this regard, and the appellants formally submitted an appeal against the Council’s internal review decision on 14 November 2023.
10. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal, which I have now completed under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
• 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);
• the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• Decisions of the Irish Courts in the cases of Right to Know CLG v Commissioner for Environmental Information [2020 IEHC 353 ]; Martin v Legal Aid Board [2007 IEHC 76 ]; Miley v Flood [2001 IEHC 9 ]; Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 IR 469); and McMahon v Irish Aviation Authority [2016 IEHC 221 ]
11. What follows does not make findings on each and every argument advanced but all relevant points have been considered.
12. This appeal is concerned with whether the Council has carried out adequate searches for information such as to identify any and all information that might be relevant to the appeal at issue, in accordance with the implicit requirement of both articles 7(1) and 7(5) of the AIE Regulations to do so and, secondly, whether it was justified in withholding information under the concept of ‘legal professional privilege’.
13. As noted above, the Council responded to the appellants’ original request of 12 June 2023 on 27 July 2023. This was a full 15 days later than the due date for a response, which article 7(2)(a) of the AIE Regulations tells us “is one month from the date on which [a] request is received”. I would ask the Council to note its obligations under the regulations and to ensure that future decisions are issued in a timely manner.
14. In its response to the internal review request of 11 August 2023, the Council assumed a right to extend the time within which to issue a response by one month. On its face, this was incorrect, as the one-month extension to which reference is made in the AIE Regulations, specifically article 7(2)(b), applies only to the time allowed a public authority to respond to an original request, and not to a request for an internal review of a first instance decision.
15. It appears that this incorrect application of article 7(2)(b) arose from the internal reviewer’s opinion that a wider search was required in response to the appellant’s original request. The internal reviewer accepted that it “may” have been argued that the original request also included information relating to the zoning of the site in question. I note that the internal reviewer appears to have engaged in a constructive manner with the appellant prior to the internal review, and was clearly cognisant of the duty of the public authority to interpret requests in as wide a manner as is reasonable.
16. Arising out of the above, I would also encourage appellants to be specific and clear in the requests for information that are submitted to public authorities. Requestors should bear in mind that a request cannot be broadened at internal review stage as this stage is an opportunity to seek a review of the decision made by the public authority on the original request.
17. I make the final point that it is outside the remit of this Office to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. This Office has no role in assessing how public authorities collect, maintain and disseminate environmental information nor in enforcing transparency generally insofar as this falls outside the scope of an AIE request. Moreover, it is not within the scope of the functions of this Office to adjudicate on a planning authority’s conduct or its adherence to any regulatory requirements within that process. The role of this Office relates only to the review and decision on appeals against the non-release or part-release of environmental information by public authorities under the AIE Regulations within the scope of an AIE request.
18. Further, it is not a function of this Office to release directly to an appellant information that is held by, or for a public authority. Rather, it is the public authority in such cases that is directed by this Office to release it. In cases where a public authority maintains that it does not hold information that has been requested, but where this Office has been satisfied, based on evidence produced by the public authority that it has carried out adequate and reasonable searches for information, there is no further action that this Office can take, even in cases where an appellant vehemently continues to maintain that information is held by the public authority. However, in such cases, appellants can feel assured that this Office has done all within its powers to ensure that a public authority has abided by its obligations under the AIE regime.
19. The first issue to be considered in this appeal is whether Cavan County Council, having asserted that it has provided to the appellants all the information that it holds and that is relevant to the request, has complied with the implicit requirement of articles 7(1) and 7(5) of the AIE Regulations to conduct adequate searches such as to identify that information.
20. The information that the appellants assert is either inadequate or has not been provided is contained in their internal review request, see paragraph 3 above. The subject matter of the request in this appeal revolves around the planning application received and processed by the Council, reference 21/528, and zoning and rezoning matters related thereto. The information sought is similar, if not identical in nature to that contained in two other previous requests submitted by the appellants to the Council, the decisions in relation to which were also appealed to this Office. The Commissioner published a composite decision in response to those appeals on 22 October 2024, affirming the Council’s decision, which had been to release all information it held relevant to the requests following exhaustive searches. For a review of matters which overlap with this appeal reference should be made to that composite decision relating to appeal numbers OCE-136441-X9V7R8 and 138655-N0Z7X4 . It should be noted that the third request for information made to the Council was appealed to this Office while the previous two earlier appeals were still being reviewed. Given that the nature of the information sought in all three appeals is identical, this Office has been in contact with both the Council and the appellants with a view to bring all three appeals to a satisfactory conclusion.
21. I shall address in this decision only those matters raised by the appellants in the third request which do not overlap with those of the previous two requests, which have been amply discussed in the aforementioned composite decision.
22. In response to a request for comment from this Office in regard to the Council’s having stated that all relevant records were to be forwarded to the appellants in respect of the request the subject of this current appeal, a representative of the appellants asserted that “the matter is not resolved to our satisfaction” and that there were “still notable documents we expected to be part of the planning process that were not included, and pre-planning meeting notes were not received.” In a further communication from the appellants to this Office, concern was expressed “regarding the completeness of the information provided by Cavan County Council [as it] appears that certain critical details are still outstanding”.
23. The appellants have made reference to a number of specific matters in its communications to this Office that, from their point of view, remained to be addressed in order for their request to the Council to have been satisfied. These matters are as follows:
a. The reason the Council has relied on legal professional privilege to withhold two records;
b. The fact that no information was provided on the zoning of the lands at Killymooney Lough from residential to amenity green space, “apart from CE opinions on motions. It is not credible to suggest that senior staff within the planning department did not discuss this in relation to this planning application”.
c. The fact that no correspondence from the developer or his representatives was included in the information released other than his submission to the development plan. “Members of our group were approached on numerous occasions by persons representing this developer. It is not credible that these same people did not canvas employees of Cavan County Council or local representatives.”
d. The fact of the “absence of communication, both internal and external, regarding planned investments for developing a community park area at Killymooney Lough, as mentioned by [the Council’s Senior Planner] at a Council meeting. It is noted in the Anglo Celt newspaper that [the Senior Planner] went away to locate plans on ‘said’ plans for Killymooney Lough. Yet no details have been provided. It is crucial to understand the extent of discussions on these proposals at the staff level in Cavan County Council.”
e. The “lack of communication regarding [Councillor] Argue's abstention from the Council vote in Kilmore is indeed notable.” [It is not clear to which vote this assertion refers. The record released to the appellants with the internal review decision and seen by this Office is in regard to a Council vote that records a vote taken on 10 May 2021 in which said Councillor Argue voted against a Motion 59].
f. Request 8 [see paragraph 1 above] remains unaddressed, and information is sought on the “granting of planning [permission] reference 21528, especially in light of the land being zoned as amenity and open space under the draft County Development Plan 2022 to 2028.”
24. I will take the opportunity also in the course of this decision to comment on one further matter raised by the appellants in their internal review request to the Council, namely the fact of an environmental group known as Friends of the Environment having sent correspondence to the Council, with no apparent response having been made by it to the group.
25. It should be borne in mind that the information released by the Council during the course of the review of the request in this case is information that was also relevant to the two previous appeals made to the Council by the appellants. The only significant factor that distinguishes the appeal in this case from those two previous appeals is the fact of the withholding of two documents by the Council on the basis of legal professional privilege, a matter to which I will turn further below.
26. Of relevance in the matter of searches carried out by the Council in this case is the fact that, when the original request for information was made on 12 June 2023, the Council was already in the process of preparing submissions requested from this Office in respect of its decisions in those two previous appeals. As the information requested in those two appeals is also relevant to the request the subject of this current appeal, and as the searches conducted to identify information relevant to those two previous appeals are relevant also to the current appeal, it is clear that any submissions made by the Council in respect of searches carried out by it to retrieve information relevant to the first two appeals are also relevant to this appeal. Given the Council’s assertion in the internal review decision in this case that it was “providing a full and adequate reply to the scope of the original request”, the question arises as to whether the searches for information carried out by it were sufficiently thorough such as to confirm that the information it has released to the appellants was all the information that it held and that was relevant to the request. In other words, the issue to be considered is whether the Council has complied with articles 7(1) and 7(5) of the AIE Regulations which, cumulatively, require public authorities to make available to requesters any environmental information relevant to their requests and, should they not hold such information, to inform requesters of this fact as soon as possible. In cases where public authorities assert that all information relevant to a request has been released, as the Council in this case asserted implicitly in the quote above, a prerequisite to show compliance with these articles is that they carry out, and demonstrate they have carried out, adequate searches for the requested information.
27. In this vein, it is appropriate to note that, on 4 January 2024, in submissions to this Office in regard to the request the subject of this appeal, the Council asserted that “no further information is available on matters raised [in the third request] other than records withheld on legal privilege on advice from our Law Agent” [referring to the two records that have been withheld].
28. Previously, on 22 September 2023, that is, six days prior to the release of the internal review decision in this case, the Council’s Senior Planner had explained to this Office that IT [Information Technology] searches had been carried out with date parameters and that nothing further to the information that had already been provided had been found. This search is relevant, not only because it preceded the internal review decision in this appeal, but because it followed on searches that had already been carried out and to which reference was made in communications to this Office, as outlined below.
29. One such communication was made in submissions to this Office of 26 July 2023, in which the Council went into some detail in regard to the searches it had undertaken in order to locate and identify information relevant to the first of the two previous requests, in response to a request from this Office for full and complete details of the steps and searches it had carried out and of its records management, retention and disposal policies in respect of the specific information/records sought in that case. Those details are given in detail in the decision covering the appeals arising from the two previous requests.
30. Having reviewed all three appeals, I consider that the request the subject of this current appeal is in essence a more detailed version of the two requests dealt with in my previous decision referred to above. This being the case, I consider that the submissions from the Council of 26 July 2023 in regard to the searches it carried out apply equally to this appeal. This is because, as each of the three requests submitted by the appellants to the Council concern the same planning application and the same environmental information, the Council has relied on those submissions in respect of all three appeals.
31. I note for the record that the Council’s assertion of 26 July 2023 of having carried out adequate searches for information and released all relevant information to the appellants, came on foot of a communication to this Office made two days earlier, on 24 July 2023, in which the Council indicated that it had been able to identify and locate further information to that already identified and released to the appellants in response to the first of the two previous requests, arising from an additional search for information that occurred, critically, on foot of receipt of the request the subject of this current appeal. The investigator assigned to this appeal, having reviewed the original and internal review decisions relating to the third request, confirms that information, additional to that which had issued to the appellants in response to the two previous requests, has been released to the appellants. The additional information includes records relating to the zoning of the land in question, in response to that aspect of the third request, following a decision by the Council to “broaden the scope” of the third request, as indicated above (see paragraphs 6 and 15).
32. To my mind, the fact of the Council having affirmed on 26 July 2023 that it had carried out additional searches and had released all relevant information, was facilitated by the further information that had been identified in the search indicated in the communication to this Office of 24 July 2023, which was a search focussed on identifying information to respond to the third request, namely the request to which this current appeal relates. I take note of the internal reviewer’s statements to the appellants in this appeal that “I wish to confirm that I am hereby considering the full remit of records relative to the above planning decision and its related zoning” and “the Council is now providing a full and adequate reply to the scope of the [third] original request.”
33. Further clarifications were made to this Office by the Council in response to a request for further information regarding elements of the information sought in the two previous requests. Information on these clarifications, which have a bearing on the current appeal as they outline reasons for why certain information sought does not exist and detail the searches made by the Council to identify information common to all three appeals, is given in the Commissioner’s decision covering those appeals, see paragraph 20 above. I have taken those matters into account when carrying out my review of this appeal.
34. Given all the above, I am satisfied that the Council has conducted adequate and reasonable searches to identify, locate and retrieve any information relevant to the request the subject of this current appeal, and accordingly has satisfied the cumulative requirements of articles 7(1) and 7(5) of the AIE Regulations to release that information except where pertinent exemptions apply and to refuse information that is not held by, or for the public authority and to notify the appellants of this fact as soon as possible. In this appeal, two records were withheld from the appellants on the basis of legal professional privilege, that is, by way of an exemption to release of information contained within the AIE Regulations, and to this matter I turn below.
35. For the sake of completeness, I wish to refer to two matters raised by the appellants, one of which was raised in both the internal review request as well as in submissions to this Office, and one which was raised only in the latter.
36. The first matter is the assertion made by the appellants (see paragraph 23 c. above) that it is not credible that Council employees or local representatives were not canvassed by persons representing the developer in this case who had approached members of the appellants’ group. According to the appellants, local representatives informed members of the appellants’ group that said developer “applied substantial pressure around the time of the development plan voting” on the local representatives. The sole function of this Office is to ascertain whether a public authority has complied with its obligations under the AIE Regulations. Where the question arises as to whether or not particular information is held by the public authority, the sole role of this Office is to consider whether the public authority has conducted adequate searches in order to identify, locate and retrieve information that is relevant to a request. Where adequate searches have been carried out, there is no further role for this Office in determining whether information should exist or not.
37. The second matter is the fact of an environmental group known as Friends of the Environment having sent correspondence to the Council, with no apparent response having issued. The appellants assert that this group “sent a legal letter due to works taking place at the subject site. No correspondence from the Head Planner has been included, senior managers within CCC responding to local people’s concerns.” No details regarding this letter has been given to this Office by the appellants. However, the investigator in this appeal has had occasion to review third party submissions made by persons and groups, including the appellants’ group, to the Council in the course of the planning application process in this case. This information is publicly available on the Council’s online planning portal here. The investigator has noted the existence on that portal of a submission made by the Friends of the Environment dated 7 September 2021 and a corresponding receipt of acknowledgement letter dated 13 September 2021. If the “legal letter” referred to by the appellants above is this pre-planning submission made by Friends of the Environment, then the Council appears to have acknowledged its receipt and included it in the list of submissions available on the online portal. I note that the content of all submissions find expression in two planners’ reports published by the Council on its online portal, one dated 15 October 2021 and one dated 25 May 2022. It appears to me that concerns raised in submissions find a response in the planners’ reports, in the sections covering conclusions, recommendations and conditions attached to the planning permission granted.
38. The information or two records refused in this case comprise two email threads, one between the Council’s Acting Law Agent and a senior counsel in which the latter provides legal advices to the former, and one between said Acting Law Agent and the Council’s Senior Planner, with legal advices provided by the former to the latter.
39. As noted above at paragraph 27, this information was “withheld on legal privilege on advice from [the Council’s] Law Agent.”
40. Included with the internal review decision that issued on 28 September 2023 was a schedule of records that noted, in relation to one of seven sets of records, denominated “AIE Sherry External Correspondence”, “Part Grant[ed]/Part Refus[ed]” [Sherry is the surname of the applicant developer of the lands the subject of this and the previous two associated appeals]. A link to a list of the seven sets of records, including this one, was provided in the decision letter, to allow access to each by the appellants. An annotation beside this set of records indicated that the basis for refusal of the records refused was “8(a)(iv) legal professional privilege”.
41. The annotation therefore indicated that article 8(a)(iv) of the AIE Regulations was being applied by the Council to refuse the two records on the basis of LPP.
42. Article 8(a)(iv) provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of its proceedings, where such confidentiality is otherwise protected by law, including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts. The Council made no reference to the “law” upon which it was relying in order to protect the confidentiality of its proceedings under the article.
43. While the Council relied on article 8(a)(iv) to justify refusal, it is my view that, in this case, protection for LPP most appropriately falls within the exception in article 9(1)(b) of the AIE Regulations. Legal professional privilege, being a key tenet of the administration of justice is relevant to article 9(1)(b) of the AIE Regulations.
44. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information would adversely affect “the course of justice (including criminal inquiries and disciplinary inquiries)”. Article 9(1)(b) seeks to implement Article 4(2)(c) of the AIE Directive, which is in turn based on Article 4(4)(c) of the Aarhus Convention. I note that the Aarhus Guide takes a narrow approach to construction of the relevant provision in the Aarhus Convention, interpreting “the course of justice” as referring to “active proceedings within the courts”. However, I also note that the Aarhus Guide, while a source of helpful guidance, is but a Guide, is not legally binding and is not determinative ( Right to Know CLG v Commissioner for Environmental Information IEHC 353 , paragraph 20).
45. The Council and the appellant were each invited to comment on the applicability of LPP to the withheld records.
46. The Council’s position following this request for further submissions is that “the records withheld are protected by Legal Professional Privilege.”
47. The appellants point to the importance of the associated analysis of the public interest test that must be applied in cases when an exemption such as that in article 9(1)(b) is held to apply in a particular case, asserting that exposure of information to LPP “highlights the need for a thorough consideration of environmental concerns and the principles of openness and transparency.” They are of the view that it “is imperative the Council provides a clear and justified explanation for its reliance on legal professional privilege, ensuring transparency and accountability in the decision-making process” and that “clarifying the Council’s stance on legal privilege is essential in achieving this goal”.
48. LPP is a right of a person to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice. It is a common law right with a constitutional foundation, as a dimension of the protection of the administration of justice afforded by Article 34 of the Irish Constitution. The existence of LPP is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice, such that it is “a fundamental condition on which the administration of justice as a whole rests” (see Martin v Legal Aid Board [2007 IEHC 76 ] and Miley v Flood [2001 IEHC 9 ]). In light of this, I accept that the disclosure of information which would breach LPP would, as a result, adversely affect the course of justice, within the meaning of Article 9(1)(b) of the AIE Regulations.
49. LPP encompasses legal advice privilege and litigation privilege. Legal advice privilege covers a communication between “a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice whether at the instigation of the client or the lawyer” (Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 IR 469). In light of the guidance set out in McMahon v Irish Aviation Authority [2016 IEHC 221 ], I understand that for legal advice privilege to apply: (a) there must be a communication between a client and a lawyer (including solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General); (b) the communication must have been made in confidence; (c) the communication must have been made during the course of a professional legal relationship; and (d) the communication must have been made for the purposes of the giving or receiving of legal advice.
50. In this case, I accept the contention of the Council that legal advice privilege attaches to the entirety of the information in each of the two records it has refused to release, for the following reasons:
a. it is clear on its face that the information records, in one case a communication between the Council’s Acting Law Agent (a lawyer) and the Council (a client) and in the other, between a senior counsel (a lawyer) and the Council’s Law Agent (a lawyer, effectively the Council’s solicitor acting on behalf of the Council, a client), constitutes legal advices sought and received by the Council in the context of a lawyer/client relationship and attracts legal professional privilege;
b. the Council’s submission that the communications were made in confidence and have not been shared with any other party with the express intention of maintaining the privilege attaching to the advices;
c. the relationship between the Council and both the Council’s Acting Law Agent and the senior counsel in this context is a professional legal relationship; and
d. it is not possible to separate the information in the records to which the Council considers the legal professional privilege to apply from other information in the records.
51. There is no evidence that LPP has been waived by the Council in this instance. Accordingly, my view is that release of the information would breach LPP. Whilst I am of the view that article 9(1)(b) does not protect legally privileged information in and of itself, I am satisfied that the disclosure of this information would adversely affect the course of justice, as it would undermine the general assurance that correspondence with one’s legal advisor will remain confidential. I consider that this applies regardless of whether there are current or envisaged proceedings in place. LPP does not require related proceedings to be in being. I therefore find that article 9(1)(b) applies to the information sought.
52. I will now proceed to consider whether the interest in withholding the relevant information is outweighed by the public interest in its disclosure, having regard to the provisions of article 10(3) and 10(4) of the Regulations.
53. The Council has sought to apply the public interest test in correspondence with this Office. It respectfully submits “that such public interest (if any) that could be possibly served by disclosure of the records withheld in this case is vastly outweighed by the public interest served by refusal”, that in “order for the Local Authority to be able to carry out its work effectively, it must be able to engage on a confidential basis with its own Lawyers and to seek and obtain legal advices in confidence” and “that the [two] documents withheld in this case each clearly come under the heading of Legal Professional Privilege and the interests of justice dictate that they should not be disclosed in response to the access request, the subject matter of the within Appeal.”
54. In favour of refusal, I note that the case law referred to above makes it clear that the protection of LPP is of fundamental importance to the administration of justice. The courts have emphasised the importance of the principle to facilitating free and frank communication with legal advisers (see, for example, Barr J’s summary of the rationale for protection in McMahon v Irish Aviation Authority [2016 IEHC 221 ] at paragraphs 7-11). I also consider that the existence of legal professional privilege encourages public authorities to seek legal advice freely and frequently, and that there is a public interest in ensuring that public authorities seek legal advice about their obligations, particularly in relation to environmental matters.
55. In considering the public interest served by disclosure in this case, there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive. There is also a general interest in the openness and transparency of the decision-making processes of public authorities in relation to environmental matters. I note also the appellant’s view that the weighing of the public interest in disclosure against the public interest in the withholding of environmental information “highlights the need for a thorough consideration of environmental concerns and the principles of openness and transparency.” I am of the view that increased transparency around the internal deliberations of public authorities on how they achieve this protection is an important consideration in applying the public interest test.
56. However, having considered the interest in directing release of the specific legal advice at issue in this particular case, I have come to the conclusion that the public interest in disclosure is not sufficient to outweigh the fundamental importance of the interest of preserving the Council’s right to LPP in relation to the advice that it received from both the senior counsel and its Acting Law Agent. Legal professional privilege is a significant feature of our legal system and the Courts have noted on numerous occasions the strong public interest which exists in protecting it. I note that a client receiving confidential legal advice is open to giving consent to its release, or part release, and this is a matter the Council is at liberty to consider in the course of time in the interests of openness and transparency in the furtherance of more effective participation by the public in environmental decision-making and, eventually, a better environment.
57. I do note, however, that the matter of release or non-release of information where LPP and article 9(1)(b) may apply to a request for environmental information is case-specific and there may be situations where release of such information is warranted under the public interest balancing test. It is important that public authorities remember that since 2007 it is open to them to release legally privileged information, and to this Office to direct such release following receipt of an appeal, under the public interest balancing test. However, in the circumstances of this particular case, I do not find that the public interest in disclosure outweighs the interest served by refusal.
58. Accordingly, I affirm the decision of the Council to refuse access to the information containing the legal advices, and find that article 9(1)(b) applies to the withheld information and that the interest in refusal outweighs the public interest in disclosure.
59. In light of this finding, it is not necessary to address the application of article 8(a)(iv) of the AIE Regulations that was relied upon by the Council in this case.
60. I have given careful consideration to all submissions made by both parties to this appeal. I acknowledge the grievance expressed by the appellants by, in their view, an apparent lack of availability of information that it deems should exist and be held by the Council. Equally, I have reviewed the detail given by the Council in regard to the exhaustive searches it has carried out to locate and identify the information sought, including searches conducted in respect of two previous related requests for information. I am of the view that the Council has conducted adequate and thorough searches and that it has thus complied with the cumulative requirements of articles 7(1) and 7(5) of the AIE Regulations to make available to the requesters any environmental information relevant to the request and, in respect of information that is not held by it, to inform the requesters of this fact. I find that the Council was justified in refusing access to two records by way of legal professional privilege under article 9(1)(b) of the Regulations.
61. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I affirm the Council’s decision.
Appeal to the High Court
62. 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