Decision
Ms X and Department of Environment, Climate and Communications
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-155577-C6K6Z9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-155577-C6K6Z9
Published on
Whether the Department was justified in refusing access to records 9, 29, 31, 33, and 40 under article 8(a)(iv) of the AIE Regulations.
14 May 2025
1. This case relates to a previous appeal to this Office, reference OCE-150539-V0C2J9. .
2. On 24 March 2024, the appellant made the following request to the Department:
“I request access to records supporting the policy change leading to the decision to target 9GW onshore wind energy, as detailed in the Climate Action Plan 2023. I quote “Dial up to 9 GW onshore wind, 8 GW solar, and at least 7 GW of offshore wind by 2030 (with 2 GW earmarked for green hydrogen production).” CLIMATE ACTION PLAN 2023
(i) I would expect such records to include but not limited to modelling analysis and related reports, carried out on Ireland’s land area and the power generating potential from wind energy projects on the areas. I am seeking access to the outcomes of the modelling under various setback and turbine height scenarios (for the State, as a whole, and by local authority area, if available);
(ii) Information relating to minimum turbine size and setback distances required to provide for what the department would consider commercially feasible wind energy development in Ireland.”
3. The appellant also submitted “[a]s the policy is now on record, all deliberations are complete, I anticipate the release of the information would serve to inform and provide clarity to the decision.”
4. On 19 April 2024, the Department applied an extension under article 7(2)(b) of the AIE Regulations.
5. On 24 May 2024, the Department issued its decision wherein it part-granted the appellant’s request. The Department listed 45 records that it considered relevant on the schedule. It stated that it was granting access to 27 records (records 1, 2, 3, 6, 8, 10, 12, 14, 15, 18, 19, 21, 24, 25, 27, 28, 30, 32, 34, 35, 36, 37, 39, 41, 43, 44, 45). The Department stated that it was refusing access to 14 records under article 9(2)(c) of the AIE Regulations (records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42), and in respect of three of those records it indicated that another record was supplied (records 29, 31, 33) and in respect of 10 of those records it indicated that it was “refusing” access to a version of the information under article 7(3)(a)(i) of the AIE Regulation’s on the basis that another record was publicly available (records 9, 11, 17, 20, 22, 23, 26, 38, 40, 42). The Department also stated that it was “refusing” access to 4 records under article 7(3)(a)(i) of the AIE Regulations (records 4, 5, 13, and 16) on the basis that those records were also publicly available.
6. On 30 May 2024, the appellant sought an internal review of the Department’s decision “of all refusals.” She also commented: “I argue that the disclosure of modelling information would not adversely affect confidentiality of the proceedings as all deliberations have ceased. The modelling data is an expert report, factual information to which the public has an overriding interest, especially given the lengthy delay in the revision process of the wind energy development guidelines, now more than 10 years, 7,500 public submissions were made to the initial revisions. The wind energy development guidelines are intrinsically linked to the onshore wind energy target, the setback is determined by the noise emissions from the wind turbines.”
7. On 13 June 2024, the Department issued its internal review decision, affirming its original decision.
8. On 12 July 2024, the appellant submitted an appeal to this Office of the Department’s decision dated 13 June 2024, appeal reference OCE-150539-V0C2J9. The scope of that review concerned whether the Department was justified in refusing access to records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42, as identified and provided to this Office, under article 9(2)(c) of the AIE Regulations. I issued a decision in OCE-150539-V0C2J9 on 28 November 2024, which is available here I annulled the Department’s decision under article 9(2)(c) of the AIE Regulations and directed it to carry out a fresh internal review decision-making process in respect of the fourteen records at issue. In doing so, I included the following comments:
“38…I am not satisfied that the Department properly considered the information at issue and, in essence, adopted a “blanket approach” to its refusal under article 9(2)(c) of the AIE Regulations, regardless of the specific nature or content of the records and without also giving adequate consideration of article 10 of the AIE Regulations. It is clear that the Department did not provide adequate reasons for refusal of the records at issue.”
39. Accordingly, at this stage, I consider that the most appropriate course of action to take in this case is to annul the Department’s decision under article 9(2)(c) of the AIE Regulations and to direct it to undertake a fresh internal review decision-making process in respect of the records at issue.
[…]
41. In re-considering the request, should the Department wish to rely on article 9(2)(c) of the AIE Regulations (or any other exemption provision provided for in article 8/9 of the AIE Regulations), it must fully set out its reasons for reaching its conclusions as well as, where relevant, its considerations of article 10 of the AIE Regulations, including paragraphs (3), (4), and (5). […]
42. Finally, given comments made by the Department in its submissions to this Office regarding information it was unable to locate, it may also be relevant for the Department to set out the searches undertaken to identify relevant information to the appellant and, if any information is being refused under article 7(5) of the AIE Regulations on the basis that it is not “held by or for” the Department, to set out the reasons for reaching that conclusion.”
9. On 20 December 2024, the Department issued its new internal review decision. The Department granted access in full to seven records (records 7, 11, 17, 20, 22, 26, and 42). The Department part-granted access to two records (records 23 and 38) redacting certain information under article 8(a)(i) of the AIE Regulations. The Department refused access to five records (records 9, 29, 31, 33, and 40) under article 8(a)(iv) of the AIE Regulations. The schedule of records also indicated that the Department was “refusing” access to four records under article 7(3)(a)(i) of the AIE Regulations (records 4, 5, 13, and 16) on the basis that those records were also publicly available.
10. On 20 January 2025, the appellant submitted an appeal to this Office of the Department’s decision dated 20 December 2024, appeal reference OCE-155577-C6K6Z9.
11. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Department and the appellant as outlined above and to correspondence between my Office and both the Department and the appellant on the matter. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide)
12. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
13. As outlined, this case relates to a previous appeal to this Office, reference OCE-150539-V0C2J9. It is important to note that the scope of that review concerned whether the Department was justified in refusing access to records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42, as identified and provided to this Office, under article 9(2)(c) of the AIE Regulations. In the “Scope” section of that decision, I commented:
“ As indicated, the Department stated that it was refusing access to 14 records under article 9(2)(c) of the AIE Regulations (records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42) and, in respect of 10 of those records it indicated that it was “refusing” access to another version of the information under article 7(3)(a)(i) of the AIE Regulation’s on the basis that another record was publicly available (records 9, 11, 17, 20, 22, 23, 26, 38, 40, 42). The Department also stated that it was “refusing” access to 4 records under article 7(3)(a)(i) of the AIE Regulations (records 4, 5, 13, and 16) on the basis that those records were publicly available. For reference, the Department’s schedule at internal review decision included the details set out at Appendix 1.
Article 7(3)(a)(i) of the AIE Regulations provides that where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless the information is already available to the public in another form or manner that is easily accessible. I note that the appellant did not specify a particular form of access desired and I also note that while the Department stated that it was “refusing” access under article 7(3)(a)(i) of the AIE Regulations to records 4, 5, 13, and 16, and other versions of information in records 9, 11, 17, 20, 22, 23, 26, 38, 40, 42, it did in fact provide the appellant with links to where those records were publicly available (see Appendix 1).
In her submissions to this Office, the appellant made no reference to the information that was provided by way of the links given on the schedule. She does not appear to dispute the manner in which the information that is publicly available (records 4, 6, 13, and 16) was provided to her under article 7(3) of the AIE Regulations, instead she appears to be seeking access to the information that was refused which is not already publicly available by way of the links provided.
In all the circumstances, I am satisfied that the scope of this review concerns whether the Department was justified in refusing access to records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42, as identified on the schedules and provided to this Office, under article 9(2)(c) of the AIE Regulations.
14. I issued a decision in OCE-150539-V0C2J9 on 28 November 2024, which is available here I annulled the Department’s decision under article 9(2)(c) of the AIE Regulations and directed it to carry out a fresh internal review decision-making process in respect of the fourteen records at issue, namely: 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42.
15. In its new internal review decision, the Department granted access in full to seven records (records 7, 11, 17, 20, 22, 26, and 42). The Department part-granted access to two records (records 23 and 38) redacting certain information under article 8(a)(i) of the AIE Regulations. The Department refused access to five records (records 9, 29, 31, 33, and 40) under article 8(a)(iv) of the AIE Regulations. The schedule of records also indicated that the Department was “refusing” access to four records under article 7(3)(a)(i) of the AIE Regulations (records 4, 5, 13, and 16) on the basis that those records were also publicly available.
16. In her statement of appeal to this Office dated 20 January 2025, the appellant included the following comments:
“Firstly, it appears the internal review refuses 8 to 9 records (it appears record 13 & 16) are a duplicate.
I appeal all refused records, and also the following issues;
• Record 12 - the Baringa / TENI meeting slides have yet to be released, which are further referenced in Record 15 as part of the Ministers briefing.
• Record 12 /13 - A Baringa Report commissioned by WEI is publicly available, however a Bridging the Gap report is referenced in the correspondence, I request a copy of same.
• Record 26 - an incorrect record was provided. The description is 'EirGrid draft CAP 23 Emissions Analysis Key Scenarios data'. I was provided with a "set of assumptions further 'accelerated decarbonisation' from DECC to Eirgrid.”
17. In further submissions to this Office dated 18 February 2024, the appellant included the following comments:
“Part A. I appeal all refused records; 4, 5, 9, 13, 16, 29, 31, 33, 40, this includes records refused with alternative ‘form or manner’ provided by way of a link.
Part B. In addition, I request the following records;
1. Record 12 - the Baringa / TENI meeting slides have yet to be released, which are further referenced in Record 15 as part of the Ministers briefing.
2. Record 12 /13 - A Baringa Report commissioned by WEI is publicly available, however a Closing the Gap report is referred to in the correspondence, I request a copy of same.
3. Record 26 - an incorrect record was provided. The description is 'EirGrid draft CAP 23 Emissions Analysis Key Scenarios data'. I was provided with a "set of assumptions further 'accelerated decarbonisation' from DECC to Eirgrid.
Part C. Record 12 / 13 - the Baringa report records results of spatial planning modelling. I request access to the spatial planning model, specifically the input parameters, setback distance, turbine data to incorporate existing wind farms etc. This information may or may not be in the possession of the Department but it is 'held for' the Department.”
18. The appellant later clarified to this Office that “The latter half of the paragraph [for Part C] should read; I request access to the spatial planning model, that is to say in full. I have a special interest in the input parameters such as setback distance etc, also the land use and environmental sensitivities, such as SPAs, SACS and NHAs, etc.”
19. As indicated above records 4, 5, 13, and 16 did not fall within the scope of case OCE-150539-V0C2J9 and, while mentioned by the Department in its new internal review decision, did not form part of this Office’s direction to carry out a fresh decision making process in respect of records 7, 9, 11, 17, 20, 22, 23, 26, 29, 31, 33, 38, 40, 42. Accordingly, I do not consider records 4, 5, 13, and 16 to fall within the scope of this appeal.
20. However, for the sake of completeness and noting that the appellant indicated that she was disputing the refusal of records 4, 5, 13, and 16 under article 7(3)(a)(i) of the AIE Regulations. I will make a number of comments in that regard. As stated, article 7(3)(a)(i) of the AIE Regulations provides that where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless the information is already available to the public in another form or manner that is easily accessible. It is important to note that if giving access to information under article 7(3) of the AIE Regulations this is considered to be the granting of a request, rather than a refusal, albeit in another form or manner than requested. I draw this to the Department’s attention in particular so as to avoid confusion in future cases.
21. I note that the appellant did not specify a particular form of access desired and I also note that while the Department stated that it was “refusing” access under article 7(3)(a)(i) of the AIE Regulations to records 4, 5, 13, and 16, it did in fact provide the appellant with links to where those records were publicly available. In her submissions to this Office the appellant did not identify any particular issue with the records that were made available by way of the links or indicate a different form of access desired. Therefore, even if the records did fall within the scope of this review, it is unclear what the appellant is disputing in respect of these records as provided. It does appear that the appellant may seeking further records other than those available at the links; it is open to her to make a fresh request to the Department for any further information other than that already identified by the Department, should she wish to do so.
22. As indicated in the Background section above, in its original decision dated 24 May 2024 the Department stated that it was granting access to Record 12. Accordingly, that record did not form part of the internal review or appeal OCE-150539-V0C2J9. Therefore, I also do not consider record 12 to fall within the scope of this review.
23. The appellant also appears to be seeking further information that she considers relevant to Records 12 and 13. Having regard to all of the above, such information does also not fall within the scope of this appeal. However, it is open to the appellant to make a fresh request to the Department for any such further information, should she wish to do so.
24. Furthermore, while I note the comments of the appellant at “Part C” of her submissions dated 18 February 2024, such issues were not raised in her statement of appeal dated 20 January 2025 (a review by this Office is limited by the statement of appeal) and do not fall within the scope of this appeal. Again, if the appellant is seeking access to such further information it open to her to make a fresh request to the Department, should she wish to do so.
25. Regarding Record 26, during the course of this review, the Investigator wrote to the Department stating “The appellant contends ‘Record 26 - an incorrect record was provided. The description is 'EirGrid draft CAP 23 Emissions Analysis Key Scenarios data'. I was provided with a "set of assumptions further 'accelerated decarbonisation' from DECC to Eirgrid.” The Investigator noted “that the copy of the Record 26 provided to the appellant and this Office is entitled “RECORD 26 - 221201 Accelerated Decarbonisation Emissions Scenario.pdf” and on the schedule it is named “EirGrid draft CAP 23 Emissions Analysis Key Scenarios data.” She asked the Department to respond to the appellant’s contention that an incorrect record was provided. The Department replied stating “I can confirm that the record provided is the correct one – there was a discrepancy between the name of the record (as it was named as an attachment in the original email chain) and the description of the record in the original schedule. I opted to maintain the record names and descriptions as provided by the original decision maker, apologies for any confusion this has caused.” I have no reason to doubt the Department’s explanation in this regard. Accordingly, I do not consider that there is any further matter for review in respect of Record 26.
26. In light of the appellant’s statement of appeal and submissions to this Office, I am also satisfied that she is not seeking a review in respect of the very minor amount of information redacted from records 23 and 38 under article 8(a)(i) of the AIE Regulations.
27. In all the circumstances, I am satisfied that the scope of this review concerns whether the Department was justified in refusing access to records 9, 29, 31, 33, and 40 under article 8(a)(iv) of the AIE Regulations.
28. Notwithstanding the scope of this appeal, as set out above, the Investigator in her correspondence with the Department also asked whether slides related to the Baringa Bridging the Gap Report available at: https://www.baringa.com/globalassets/insights/low-carbon-futures/our-market-and-policy-studies-in-ireland/bridging-the-gap-towards-a-zero-carbon-power-grid/bridging-the-gap-a4-report-final.pdf , a copy of which had been provided to this Office could be released to the appellant. In response, the Department stated “The slides are not publicly available, and while the presentation has been marked as confidential, it is our understanding that the information contained within is already available to the public through the Baringa Bridging the Gap Report. On that basis, we would see no issues in releasing the slides to the appellant. In responding to this query from the OCEI, we reached out to the relevant third part (Baringa) to see if they would object to releasing the slides and to respond by Monday 28th April. We’ve yet to receive a response.” In the circumstances, while I do not consider that the slides fall within the scope of this review, I would be grateful if the Department could provide a copy of the slides concerned to the appellant.
29. While the AIE Regulations do not explicitly provide that the burden of proof rests with the public authority in relation to justifying a refusal to make information available, the Commissioner considers that the scheme of the Regulations, and of Directive 2003/4/EC upon which the Regulations are based, makes it clear that there is a presumption in favour of release of environmental information.
30. The Department is refusing access to records 9, 29, 31, 33, and 40 under article 8(a)(iv) of the AIE Regulations. These records are described on the schedule of records, as follows:
• Record 9 – “CAP 23 Electricity Chapter draft” (“The final version of the document is publicly available at the link below: https://www.gov.ie/en/publication/7bd8c-climate-action-plan-2023/ )
• Record 29 – “Draft submission to Minister presenting CAP 23 scenarios” (“More advanced versions of this document have already been released under this AIE request – see records 2 and 3”)
• Record 31 – “Draft submission to Minister presenting CAP 23 scenarios with observations” (“More advanced versions of this document have already been released under this AIE request – see records 2 and 3”)
• Record 33 – “Draft submission to Minister presenting CAP 23 scenarios with accepted observations (“More advanced versions of this document have already been released under this AIE request – see records 2 and 3”)
• Record 40 – “CAP 23 Electricity Chapter draft” (“The final version of the document is publicly available at the link below: https://www.gov.ie/en/publication/7bd8c-climate-action-plan-2023/ )
31. In its internal review decision, the Department stated:
“Result of the internal review of this decision
As you will be aware from the acknowledgement letter of the internal review, I was assigned to review your request. I made a decision on this review on 20th December 2024. I have examined the records relevant to this request. I have decided that the decision made by the initial decision-maker should be varied as follows: seven of refused records should be released, two of the refused records should be partially released, and five records are still refused but under a different Article of the Regulations.
I have attached an amended schedule of records with this email. It provides a brief description of each record and the decision I have made on each record. Where I have decided to refuse or partially refuse access to a record, it specifies the Article of the AIE Regulations under which this refusal has been made. For these records, it also records how I have applied the public interest test pursuant to Article 10(3) and 10(4).
In reaching the above decision and where information has been refused under Article 8 and/or 9(1)(c), I have in accordance with Article 10(1), examined whether your request relates to information on emissions into the environment and have determined that it does not.
Furthermore, in accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of your request. I have determined that the public interest would not be served by disclosing the information you request.”
32. The schedule of records included the following further details regarding the refusal of records 9, 29, 31, 33, and 40:
“Record is refused under Section 8(a)(iv), on the basis that it would adversely affect the confidentiality of the proceedings of the Department, where such confidentiality is otherwise protected by law (including the Freedom of Information Act with respect to exempt records within the meaning of those Acts). The applicable exemption under the Freedom of Information Act is Section 29(1)(a), which concerns the deliberations of FOI bodies, on the basis that the record concerned contains matter relating to the deliberative processes of the Department, including opinions and recommendations considered by the Department for the purpose of those processes.”
“With due regard to Sections 10(3) and 10(4), the public interest is best served by refusal. The draft document contains preliminary ideas and drafting errors that could be misinterpreted by the public, leading to unwarranted concerns, speculation, or misinterpretation of policy intent.”
“The information refused under Article 8 does not relate to emissions into the environment, as per Section 13.2 under the Guidance for Public Authorities and others on implementation of the Regulations.”
33. On 27 January 2025, the Department was invited to make detailed submissions to this Office in support of its decision. While the Department provided copies of the records at issue to this Office and a copy of the schedule of records referred to above, the Department provided no further submissions to this Office regarding its reliance on article 8(a)(iv) of the AIE Regulations, by reference to section 29 of the FOI Act, or its consideration of article 10 of the AIE Regulations.
34. Article 8(a)(iv) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, 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).
35. When relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect that confidentiality. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
36. The term “proceedings” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the CJEU in C-204/09 Flachglas Torgau GmBH v Bundesrepublik Deutschland set out that the concept of proceedings “refers to the final stages of the decision-making process of public authorities” (paragraph 63). A similar conclusion was reached by the CJEU in C-60/15 Saint-Gobain Glass Deutschland v Commission. Although that case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention, upon which both the AIE Directive and the AIE Regulations are based. The Court noted “…Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings” (paragraph 81). Also, Advocate General Szpunar in that case indicated that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see paragraph 51 of the Opinion).
37. Article 8(a)(iv) 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. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
38. As the Department ought to be aware (and as highlighted in my decision in OCE-150539-V0C2J9 ) articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. In this regard, the High Court in Right to Know v An Taoiseach [2018] IEHC 372 noted, in particular, that “in light of the adjudicatory processes in which a decision-maker is required to engage pursuant to [a]rticles 10(3), (4) and (5) and 11(4) of the AIE Regulations, 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” (paragraph 106). The Court held that in an absence of any indicator in the review decision that the balancing exercise mandated by articles 10(3) and (4) had been carried out, suggested that no balancing exercise had, in fact, been undertaken and that the same was true in respect of the mandatory obligation set out in article 10(5) of the AIE Regulations (paragraph 87).
39. In its internal review decision letter the Department made no reference to article 8(a)(iv) of the AIE Regulations, only referring to the article on the schedule of records provided. The Department failed to identify any “proceedings”. In addition, while the Department referred to section 29(1)(a) of the FOI Act 2014, stating “which concerns the deliberations of FOI bodies, on the basis that the record concerned contains matter relating to the deliberative processes of the Department, including opinions and recommendations considered by the Department for the purpose of those processes” it provided no further explanation regarding why it considered that provision to apply to the information at issue nor did it give any detail in respect of the public interest considerations required (section 29(1)(b)) or the elements of the provision set out at section 29(2) that serve to dis-apply section 29(1)(a). The Department also failed to identify any “adverse effect” that would arise as a result of the disclosure of the specific information at issue.
40. Furthermore, regarding articles 10(3) and 10(4) of the AIE Regulations, the Department simply stated “in accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of your request. I have determined that the public interest would not be served by disclosing the information you request” and “the public interest is best served by refusal. The draft document contains preliminary ideas and drafting errors that could be misinterpreted by the public, leading to unwarranted concerns, speculation, or misinterpretation of policy intent.” The Department did not specify any information that it had particular concerns about nor did it given any further indication of any factors for or against release considered or detail regarding any balancing exercise carried out. It also gave no consideration of whether partial disclosure of any of the records refused under article 8(a)(iv) of the AIE Regulations was possible in line with article 10(5) of the AIE Regulations.
41. It is clear that the Department did not provide adequate reasons for refusal of the records at issue. Having regard to all of the above, I cannot find that the Department’s decision to refuse access to records 9, 29, 31, 33, and 40 under article 8(a)(iv) of the AIE Regulations is justified.
42. As outlined this case relates to a previous decision of this Office wherein I annulled the Department’s decision under article 9(2)(c) of the AIE Regulations on the basis of a “blanket approach” and directed it to undertake a fresh internal review decision-making process. In such circumstances, I do not consider it appropriate to remit the matter to the Department for a second time. Accordingly, I direct release of all of the information at issue.
43. For clarity, the Department confirmed to this office that the grey boxes contained in Records 29 and 31 do not comprise redacted information, rather they are “placeholder spaces” original to the documents.
44. Finally, while, given all of the foregoing, I do not consider it necessary to make a specific finding on article 10(1) of the AIE Regulations in this case, I do wish to make a brief comment on that provision given the Department’s comments “I have in accordance with Article 10(1), examined whether your request relates to information on emissions into the environment and have determined that it does not” and “[t]he information refused under Article 8 does not relate to emissions into the environment, as per Section 13.2 under the Guidance for Public Authorities and others on implementation of the Regulations.” A brief examination of the records at issue shows that at least some of the information contained therein does, on its face, relate to “emissions” into the environment.
45. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision under article 8(a)(iv) of the AIE Regulations in respect of records 9, 29, 31, 33, and 40. I direct the Department to release those records.
46. 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