Decision
Ms N and Department of Public Expenditure and Reform (the Department)
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93465-Z3R8H2
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-93465-Z3R8H2
Published on
**Whether the Department was justified in:
(a) refusing access to redacted parts of current shareholder letters of expectation issued by the Government to ESB, EirGrid, Coillte and Bord na Móna on the basis that the redacted information is not environmental information within the meaning of article 3(1) of the AIE Regulations; and
(b) refusing to process the appellant’s request for superseded shareholder letters of expectation, stakeholder letters of expectation or service level agreements in respect of those bodies.**
1. On 23 October 2018, the appellant requested a copy of all “Shareholder Letters of Expectation / Stakeholder Letters of Expectation / Service Level Agreements” (current and superseded) for ESB, EirGrid, Coillte and Bord na Móna. The appellant stated: “the “Shareholder Letter of Expectation” sets the purpose and responsibilities of the State body, policy objectives and core areas of activity and spending for companies involved in the energy sector in Ireland and is thus environmental information. Likewise, they contain economic analyses and assumptions used in environmental decision-making.”
2. On 21 November 2018, the Department:
a. Granted access to one record relating to current letters of expectation;
b. Granted partial access to four further records relating to current letters of expectation (see the detailed description below), redacting information on the ground that it is not environmental information, within the meaning of article 3(1) of the AIE Regulations. The Department stated that, if the information was environmental information, the exceptions in articles 8(a)(iv), 9(1)(c) and 9(2)(d) of the AIE Regulations would apply; and
c. Refused access to any non-current letters of expectation on the grounds that they had been superseded, so it would not be appropriate to include them in the response.
3. On 20 December 2018, the appellant requested an internal review of the decision insofar as it refused access to the information requested. In her request, the appellant stated that the Department had inappropriately modified her request, that the Department had failed to adequately search for the information requested, that the information requested is environmental information and that the exceptions relied on by the Department were not justified.
4. On 14 January 2019, the Department made an internal review decision affirming its original decision. In relation to the Department’s search for information, the Department stated that it interpreted the request as being confined to the types of records expressly specified in the request and not records relating to, supporting or ancillary to such records. As such, the search was confined to the records expressly specified. In relation to its modification of the appellant’s request, the Department stated, in summary, that the superseded letters were excluded from the scope of the request. This is because otherwise the request for information would have been so voluminous that it would have been refused on the grounds that it was manifestly unreasonable under article 9(2)(a) of the AIE Regulations. In addition, each time a Minister issues a shareholder letter of expectation the previous letter becomes redundant, so at any one time there is only one relevant letter of expectation in force.
5. The appellant brought this appeal to my Office on 11 February 2019.
6. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant, by the Department and by relevant third parties. I have also examined the contents of the records at issue.
7. 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;
• 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).
8. I have had regard to the judgments in Minch v Commissioner for Environmental Information [2017] IECA 223 (“Minch”), Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83 (“Redmond”), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (“ESB”) and Right to Know CLG v. Commissioner for Envirnmental Information and Raidio Teilifís Éireann [2021] IEHC 353 (“RTÉ”) and the decisions of the European Court of Justice in Case C-316/01 Glawischnig v Bundesminister für Sicherieit und Generationen (“Glawischnig”) and C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (“Mecklenburg”). I have also had regard to the judgment of the Court of Appeal of England and Wales that is referred to in the latter three Irish judgments, Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (“Henney”).
9. What follows does not comment or make findings on each and every argument advanced but I have considered all materials submitted in the course of the investigation.
10. This case is the oldest appeal to my Office awaiting a first instance decision, other than a small number of appeals, which are necessarily awaiting guidance from the Court of Justice of the European Union. I sincerely regret the delay in reaching a decision on this appeal. In light of this delay, I gave careful consideration to the scope of my review. On balance, I have concluded that the best way to achieve a fair and comprehensive outcome in relation to the appellant’s request for information is for me to reach a conclusion on the threshold issues outlined below. However, I acknowledge that this outcome is disappointing in the context of the overall delay in this case. I continue to be committed to improving the efficiency of my Office in order to achieve timely reviews in future.
11. The Department confined its consideration of the appellant’s request to its precise wording. The appellant’s position is that the Department should have interpreted the request as capturing policy directions that may have been issued to the bodies in other formats prior to the Department’s adoption of a policy of issuing letters of expectation, and that this was within the scope of the appellant’s original request. I acknowledge that it is often difficult for members of the public to make AIE requests covering all of the information that they may want, as they may not be aware of what exactly public authorities hold or how the public authority might describe it. However, public authorities must take AIE requests as they find them. In this case, the request was clear and specific. It sought a copy of all “Shareholder Letters of Expectation / Stakeholder Letters of Expectation / Service Level Agreements” (current and superseded) for ESB, EirGrid, Coillte and Bord na Móna. I do not consider that this request captures anything more than that which is expressly stated.
12. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. In accordance with article 11(5) of the AIE Regulations, the scope of my review includes requests that have been inadequately answered or have otherwise not been dealt with in accordance with Article 3, 4 or 5 of the AIE Directive. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
13. For the purpose of my review, I will consider the appellant’s request in two parts:
a. the request for current Shareholder Letters of Expectation, Stakeholder Letters of Expectation and Service Level Agreements for the relevant companies (the “request for current letters of expectation”); and
b. the request for superseded Shareholder Letters of Expectation, Stakeholder Letters of Expectation and Service Level Agreements for the relevant companies (the “request for superseded letters of expectation”).
14. In relation to the request for current letters of expectation, the appellant was granted access to some information. In particular, the Department released:
a. An email exchange confirming that a letter of expectation had been issued to Coillte;
b. In the ESB letter, information under the headings “Specific Energy Policy Objectives” and “Wind and Hydro Capacity Reporting”;
c. In the EirGrid letter, an instruction about development and implementation of grid roll-out and upgrade, as well as information under the headings “Specific Energy Policy Objectives” and “Wind and Hydro Capacity Reporting”;
d. In the Coillte letter, information under the heading “Sectoral Corporate Policy Objectives”; and
e. In the Bord na Móna letter, information under the heading “Energy Policy Objectives”.
15. The appellant was also granted access to headings in the letters, which demonstrate that each letter includes other information on financial performance measures and targets, shareholder returns and governance arrangements. The Department refused access to the information under those headings on the basis that it is not “environmental information”, within the meaning of article 3(1) of the AIE Regulations. My powers as Commissioner for Environmental Information apply only in respect of environmental information held by or for a public authority. Accordingly, the scope of my review in respect of the request for current letters of expectation is confined to whether the information which has been withheld by redaction falls within the definition of “environmental information” in article 3(1) of the AIE Regulations.
16. In relation to the request for superseded letters of expectation, the Department refused to process the request on two bases. First, it decided that information falling within the scope of that request would have been so voluminous that the Department would have refused the request on the basis that it was manifestly unreasonable, within the meaning of article 9(2)(a) of the AIE Regulations. The Department did not apply the exception in article 9(2)(a) as such, but instead decided to narrow the appellant’s request to the first part of the request and not to process this additional part of the request. Second, it decided that superseded letters are no longer in force so are not relevant. Accordingly, the scope of my review in respect of the request for superseded letters of expectation is whether or not the request was adequately answered.
The positions of the parties on whether the information at issue is environmental information
17. The appellant’s position is that the current letters of expectation are environmental information within the meaning of paragraphs (c) and (e) of the definition. The appellant submits that the letters set the purpose and responsibilities of the State body, policy objectives and core areas of activity and spending for companies involved in the energy sector in Ireland. The appellant submits that each of the relevant bodies has a national geographic spread and is heavily or exclusively involved in energy or waste projects or natural resource extraction, inherently involving activities affecting or likely to affect the environment. The letters link government policy objectives with defined financial targets to be achieved by each body and oversight for this. Those targets are to be achieved through interventions into the environment or which affect the environment. As such, the letters of expectation clearly form part of the body’s environmental decision-making by defining policies, activities, associated financial targets and reporting requirements. By way of example, the appellant notes that to pay out a higher dividend, more wind farms may need to be built, or more land sold, or more trees harvested, or more customers connected to the electric grid requiring more power lines. In other words, all of the information contained in the letters is interdependent, such that the financial targets, reporting and governance arrangements are inherently linked to the policy and activities affecting the environment.
18. The Department’s position is that the withheld information involves details of financial targets, shareholder returns (i.e. dividends), equity valuations, corporate governance arrangements, reporting arrangements between the Shareholder Departments and the State Companies, or the evaluation of the Boards of the State Companies, and that such information is not environmental information.
19. My Office contacted the relevant companies and the Departments responsible for those companies to seek their views on whether the information is environmental information. The detailed submissions received on this point were, in summary:
a. The Department of Communications, Climate Action and Environment (DCCAE), which issued the relevant letters to Bord na Móna, ESB and EirGrid, submitted that the regulatory and governance information contained in the letters of expectation does not amount to environmental information. It submitted that, while the letters are intended to affect how the companies operate in terms of timely reporting, attainment of financial targets, etc., the letters are not intended to affect the functions and operations of the companies at operational or project level and are not therefore intended to have any material impact on environmental matters. The context in which decisions having an environmental impact are made by the companies is not derived from the letters of expectation, but from commercial prudence and overall fit with prevailing conditions and strategies. DCCAE submitted that a finding that the information is environmental information would not be in the public interest as it would undermine DCCAE’s capacity to effectively govern its state companies, some of whom are commercial entities and operate in a competitive environment.
b. Bord na Móna submitted that its letter of expectation is not environmental information because it is, and is intended to be, a governance document. Although Bord na Móna may have regard to the interests of its shareholders and its employees, as an incorporated body its Board has an obligation to take decisions in good faith in the best interests of the company. As such, its letter of expectation was not intended to and cannot in fact affect the decisions taken by Bord na Móna’s Board.
c. ESB submitted that the letter is not a measure within the meaning of paragraph (c), as it does not amount to a plan or policy. ESB also submitted that the letter is not affecting or likely to affect the environment. It stated that the letter is not directed at any policy, nor does it suggest any new programme or project, or how an existing programme or project might be conducted on the ground. ESB submitted that, even if it were possible to infer any direction by the Government from the letter, legal requirements deriving from EU law and the actions of the Commission for Utilities Regulation would supersede this in all cases. For this reason, the letter would not be expected to contain any information that was intended to, or could, influence the decisions ESB makes in relation to projects or activities which affect the environment. ESB made detailed submissions on each part of the letter, contending in each case that the letter was not intended to, and could not, affect or influence ESB’s decisions or activities in projects affecting the environment.
d. EirGrid submitted that the information in the redacted sections related to corporate governance and were commercial by nature and did not constitute environmental information.
20. In carrying out my review, I have examined the content of the records at issue. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the withheld records, and the extent to which I can describe certain matters in my analysis, is limited.
21. For the reasons set out below, I find that the requested information is environmental information, within the meaning of paragraph (c) of the definition.
22. Article 3(1) of the AIE Regulations provides that:
“environmental information” means any information in written, visual, aural, electronic or any other material form on-
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c);”.
23. The AIE Directive was adopted to give effect to the first pillar of the Aarhus Convention in order to increase public access to environmental information so that an informed public can participate more effectively in environmental decision-making. It replaced Council Directive 90/313/EEC, the previous AIE Directive. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43).
24. Each of the relevant companies in this case – ESB, EirGrid, Coillte and Bord na Móna – is a state or semi-state company. Each company is established by statute and incorporated under the Companies Act. 100% of both EirGrid’s and Coillte’s shareholding is held by the Government; 95% of Bord na Móna’s shareholding is held by the Government, with 5% held on behalf of its employees; and 96.1% of ESB’s shareholding is held by the Government, with 3.9% held on behalf of its employees. In other words, the Government is either the primary or the majority (by a significant measure) shareholder in each company.
25. In its submission to my Office, DCCAE explained the background to the Government’s Shareholders Expectation Framework as follows:
“Following the establishment of NewERA in 2011, the Government began the process of reforming how the Government’s shareholder role in relation to the commercial state sector is managed. As part of this reform, NewERA in conjunction with the relevant Government Departments developed a Shareholder Expectations Framework. The purpose of the Shareholder Letters of Expectation is to set out the views and expectations of the relevant Ministers as shareholders of the companies on matters including financial performance and dividend policy. These letters also set out the importance of striking the right balance between distribution of dividends and reinvestment in the business.”
26. The Code of Practice for the Governance of State Bodies, published by the Department, explains the function of shareholder letters of expectation as follows:
“Clear accountability underpins effective relations between Government Departments and the State bodies under their aegis. Effective accountability depends upon respective roles and responsibilities being clearly defined and understood on both sides of the agreement.
The starting point for clarity of accountabilities is the oversight agreement between the relevant Minister/parent Department and the State body. For commercial State bodies the oversight agreement is the Shareholder Letter of Expectation. …
The oversight agreement should reflect the State bodies legal framework; the environment in which it operates (e.g. commercial, non-commercial, regulatory body); the purpose and responsibilities of the State body; the State body’s level of compliance with this Code; details of the Performance Delivery Agreement (e.g. outputs to be delivered); and arrangements for oversight, monitoring and reporting on conformity with Government policy including those actions and areas of expenditure where prior sanction from the parent Department and/or the Department of Public Expenditure and Reform is required.”
27. The Department has published a model letter of expectation, which provides an illustrative example of what typically should be included.
28. Paragraph (c) requires the identification of a relevant measure or activity, which the information at issue is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (paragraph 20, emphasis added).
29. In this case, I consider that the appropriate measures are the letters of expectation themselves. Each letter is a detailed statement of the Government’s expectation as to how a state or semi-state company will interact with its sole or majority shareholder. Each letter sets out the Government’s overall strategic policy for the company, its expectation on financial performance and targets and its expectations as to governance and accountability. In my view, it matters not whether each letter is characterised as a policy, plan, position or some other category. In light of the case law and guidance outlined above, each letter of expectation issued by the Government falls squarely within what is envisaged by the term “measure or activity” in paragraph (c) of the definition.
30. To meet the definition, the measure or activity must affect or be likely to affect the elements and factors referred to in paragraphs (a) and (b) (i.e. the environment) or designed to protect the environment (Redmond at paragraph 57). A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond at paragraph 63).
31. I consider that each measure or activity (i.e. each letter) must be assessed as a whole, rather than breaking it down into its constituent parts. However, whether the letters are assessed as a whole or in their constituent parts, I consider that they are likely to affect the environment for the following reasons.
32. Each company’s principal functions and activities affect the environment in a significant way. This is clearly evident from each company’s own description of its principal functions and activities in its annual report:
a. In ESB’s 2020 Annual Report, it states: “As a strong, diversified, vertically integrated utility, ESB operates across the electricity market, from generation through transmission and distribution, to supply of customers, with an expanding presence in Great Britain’s generation and supply markets. In addition, we extract further value at certain points along this chain by supplying gas and using our networks to carry fibre for telecommunications.” It continues: “ESB is making a stand for Ireland’s future, a future powered by clean, sustainable electricity. We are committed to leading the transition to a reliable, affordable, low-carbon energy future, a future that protects our customers and the economy by maintaining the security and affordability of energy”.
b. In Eirgrid’s 2020 Annual Report, it states: “EirGrid Group operates and develops the electricity system in Ireland and Northern Ireland. Our primary role is to operate, develop and enhance the all island power system and the wholesale electricity market. We also develop and operate interconnections with neighbouring grids and enable third-party interconnectors.” It continues: “Because electricity can be generated without carbon emissions, it will play a crucial role in our response to climate change. The growth in clean electricity from renewable sources will require a decade of change to the electricity system. It is our responsibility to define and deliver much of this transformation.”
c. In Coillte's 2020 Annual Report, it describes what it does as: “We are financially sustainable; we provide sustainable materials to build homes and workplaces; we protect and enhance the environment; we invest in the rural communities in which we are rooted; we develop green energy to power homes and businesses; we provide healthy spaces for us all to enjoy; we clean the air you breathe”.
d. In Bord na Móna’s 2020 Annual Report, the Director’s report states: “The Group supplies electricity generated from peat, wind and biomass at its generating stations and supplies peat as a fuel to other electricity generating stations. The Group develops and operates wind farms and renewable energy projects. It also supplies waste management and high value recycling and resource recovery services, manufactures peat briquettes and horticultural products.” The statement from the Chief Executive states: “FY20 was marked by the continued implementation of Bord na Móna’s Brown to Green strategy which maps the move away from peat and the company’s diversification into a range of low carbon, sustainable operations.”
33. As I set out above, each letter of expectation is a detailed statement of the Government’s expectation as to how each company will interact with its primary or majority shareholder. The information released to the appellant shows that the letters of expectation express the Government’s views on the strategic policies that should be pursued by each company. This is best illustrated by an example of released information from each letter:
a. The ESB letter of expectation states: “Looking forward to 2020, 2030 and 2050 respectively, ESB should make a strong contribution to achieving sustainable development goals, and assisting in putting in place a smart and digital economy that compares favourably with our global competitors.”
b. The Eirgrid letter of expectation states that “It is important that EirGrid continue to support general energy policy being the safeguarding of energy security, development of a sustainable energy future and ensuring competitive, efficient and properly-regulated energy markets. This will continue to require an appropriate level of ongoing investment by EirGrid.”
c. The Coillte letter of expectation states that “it is important that Coillte pay attention to” economic considerations, including that “Coillte will ensure a sustainable, continuous and predictable level of roundwood and fibre supply from its forests, to underpin its own current and future asset return and to support indigenous industry, added value and employment.”
d. The Bord na Móna letter of expectation states: “I wish to ensure that BnM continues to actively work to support delivery of key Government policy objectives in terms of safeguarding security of energy supply, development of a sustainable energy future, and competitive, efficient and properly regulated energy markets, while also working to support new national policy initiatives, subject to commercial considerations.” It continues: “The importance of establishing BioEnergy Ireland as a means of developing and expanding the biomass market should not be understated. While I recognise the complexities of establishing a viable economic model, it is imperative that progress is made on this workstream…”.
34. In each case, the strategic objectives set out may well be consistent with the approach that the company intended to take in any event. However, the strategic approaches outlined are not, by any means, the only approach that each company might reasonably take, for example if it were to focus primarily on the profitability of its business. I consider that there is a real and substantial possibility that the strategic policies set out by the Government in each letter will, if implemented by each company, send the company in a particular direction, with a resultant impact on its operations and activities in relation to the environment.
35. The letters of expectation also set out financial targets and governance arrangements for each of the bodies, which information has been withheld from the appellant. Without disclosing the detailed information, it is clear from the Department’s model letter of expectation that specific financial targets and performance measures and specific accountability arrangements should usually be included. In order to comply with any financial target, these companies may well need to alter their operations, with a consequent impact on their activities and operations in relation to the environment. To take a hypothetical example, if Coillte were to meet an ambitious target of reduced expenditure, it may need to consider selling some of its forestry assets to private buyers, with a resulting impact on the environment (see the conclusions of the Court of Appeal in Redmond v Commissioner for Environmental Information [2020] IECA 83). As a result, I consider that there is a real and substantial possibility that the direction given in the letters as to financial targets and performance measures, shareholder returns and the governance arrangements will, if implemented by each company, affect the environment.
36. Each of my conclusions above invites the question, raised in submissions by DCCEA, ESB and Bord na Móna, of whether the letters are intended to, or could in practice, affect the functions and operations of the bodies at operational or project level. In other words, my conclusions above invite the question of whether the directions in the letters are intended to be implemented by each company. I consider that the letters are both intended to affect, and are capable in practice of affecting, the relevant companies’ operations in relation to the environment. I cannot accept that the Government intends that its state and semi-state companies will simply note the expectations of their sole or majority shareholder as to strategic policies, financial targets and governance arrangements, but carry on regardless of those expectations. Even in the absence of a majority shareholding (which, in my view, is significant), I consider that an indication from the Government that it expects a statutory body to meet financial targets or act in accordance with certain governance measures is highly likely to influence the manner in which that body conducts its day-to-day operations. As the functions and activities of each of these bodies has a significant environmental impact, there is a real and substantial possibility that such Government influence will indirectly affect the environment.
37. Accordingly, I find that there is a real and substantial possibility that the letters of expectation, as a measure or activity, will affect the environment.
38. Where the relevant measure or activity has the requisite environmental effect, one must consider whether the requested information is “on” that measure or activity within the meaning of article 3(1) of the AIE Regulations. Information is “on” a measure or activity if it is about, relates to or concerns the measure or activity in question. (Henney, paragraphs 37-44, referred to in Redmond at 99, ESB at 36-45 and RTÉ at paragraph 52). As “any information … on” a measure affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment (Redmond at paragraphs 57 and 59). However, consideration of whether information is “on” the measure does require examination of the content of the information (ESB, paragraph 50).
39. In this case, as the measure or activity identified is each letter of expectation, I consider that the information redacted from those letters is information on each such measure or activity. Accordingly, the withheld information is environmental information under article 3(1)(c) of the AIE Regulations. In light of this finding, it is not necessary for me to consider whether it is environmental information under paragraph (e).
40. In respect of the appellant’s request for superseded letters, the Department concluded that the request for information would have been voluminous in light of the establishment dates of the relevant companies (i.e. ESB in 1927, Bord na Móna in 1946, Coillte in 1988 and EirGrid in 2006). In its internal review decision, the Department did not apply the exception in article 9(2)(a) of the AIE Regulations as such, but instead decided to narrow the appellant’s request, excluding the request for superseded letters from the Department’s consideration.
41. When faced with a request for information that is potentially voluminous, a public authority can take a number of steps. First, if the public authority considers that the information is voluminous due to the generality of the request, the public authority may treat the request as having been made in too general a manner and invite the requester to make a more specific request under article 7(8) of the AIE Regulations. Article 7(2)(b) recognises that public authorities may need additional time to process requests that are voluminous or complex, so such a process is facilitated within the framework of the AIE Regulations. For example, in this case it would have been open to the Department to invite the appellant to narrow the timeframe for the request for superseded letters in advance of reaching a decision. The Department did not make any such invitation prior to making its decision. Rather, the internal review decision noted that it would be open to the appellant to refine the request and submit a new application for specific records.
42. Second, if a requester declines to narrow the request, or if the information requested remains voluminous, a public authority may consider whether the volume of information is such that the exception in article 9(2)(a) applies. If it does, the public authority must then engage in the public interest balancing test under article 10(3) and (4) and must consider whether article 10(5) applies before refusing access to the information. The Department did not actually conclude in this case that the exception in article 9(2)(a) applies, nor have I seen any evidence of the Department engaging in the public interest balancing test required under article 10 in that respect.
43. Under the AIE Regulations, public authorities must disclose environmental information held by or for them unless one of the exceptions in article 8 or 9 applies, having regard to the requirements of article 10. It is not open to a public authority to unilaterally modify a request in lieu of taking the steps outlined above. Accordingly, I find that the refusal of the request for superseded letters was not justified because it was inadequately answered.
44. Having carried out a review under article 12(5) of the AIE Regulations, I find that the withheld information in relation to the request for current letters of expectation is environmental information, within the meaning of article 3(1) of the AIE Regulations. I therefore vary the Department’s decision. I require the Department to notify the appellant of a new decision on whether it will provide access to the withheld information, within the statutory timeframe provided under article 7 of the AIE Regulations.
45. In respect of the request for superseded letters, I find that the refusal of information was not justified because it was inadequately answered. In correspondence with my Office, and in the interests of progressing her request further, the appellant indicated that if asked to refine her request she would confine it by date to Shareholder Letters of Expectation, Stakeholder Letters of Expectation and Service Level Agreements for the relevant bodies between 1 January 2004 and 23 October 2018 (the date of her original request). I require the Department to treat the request for superseded letters of expectation as being refined in this manner and to notify the appellant of a new decision on whether it will provide access to that information, within the statutory timeframe provided under article 7 of the AIE Regulations.
46. I note the Department’s position that the exceptions in article 8(a)(iv), 9(1)(c) and 9(2)(d) of the AIE Regulations would apply to the information requested. If the Department decides to refuse access to the information on these or any other grounds, I would remind the Department that the requirements of the AIE Regulations must be substantively and procedurally adhered to, including by carrying out the balancing exercise required by article 10(3) and (4) of the AIE Regulations (see Right to Know CLG v An Taoiseach (No. 2) [2018] IEHC 372, paragraphs 67-71).
47. 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.
Peter Tyndall
Commissioner for Environmental Information