Decision
Ms X and South Dublin County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-104809-F3W9S5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-104809-F3W9S5
Published on
1. On 4 December 2020, the appellant submitted a request to the Council seeking access to the following:
These include but not exclusively all and any results pertaining to:
2. The appellant asked that the Council provide her with an electronic copy of the information “as soon as possible”. On 24 December 2020, the Council decided to part-grant the request. The Council granted access in full to one record, the Rathcoole Preliminary Ecological Appraisal and explained that the record related to preliminary findings and recommendations on the terrestrial habitat, rare plants, invasive species, large mammals, bats, ornithology, amphibians, and aquatic invertebrates. The Council refused access in full, under article 9(2)(c) of the AIE Regulations, to an unspecified amount of other information and explained that it related to further ecological assessment work being carried out including an ecological assessment of the site, habitat and botanical surveys, field surveys – fauna, and a breeding birds survey. The Council indicated that article 9(2)(c) of the AIE regulations provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. The Council explained that the reports and documents refused were in the process of being completed and prepared for the Council’s review by the named consultancy. The Council stated that the estimated time for completion was Quarter 1 2021.
3. On 19 January 2021, the appellant sought an internal review of the Council’s decision. On 17 February 2021, the Council affirmed its original decision to refuse access in full, under article 9(2)(c) of the AIE Regulations, to information related to the four further ecological assessments being carried out (i.e. the ecological assessment of the site, habitat and botanical surveys, field surveys – fauna, and the breeding birds survey). It stated that the four reports were unfinished and in the course of being completed. It noted its position that to release the draft content of those reports could result in inaccurate, or potentially incorrect, information being made publicly available.
4. The appellant appealed to this Office on 4 March 2021.
5. During the course of this review, the Council outlined to this Office that a report entitled “Ecological Assessment of Lands at Rathcoole, Co. Dublin (31 November 2021)” (the November Report) was shared with the elected members of the Council for their consideration on 7 December 2021. It noted that this report is publicly available on the Council’s website. The Council stated that this report includes the completed information on the ecological assessment of the site, habitat and botanical surveys, field surveys – fauna, and the breeding birds survey; and supersedes any of the information being refused under article 9(2)(c) of the AIE Regulations. Following correspondence from this Office, the appellant confirmed that notwithstanding the published report, she wished to continue with her appeal.
6. I am directed by the Commissioner for Environmental Information to carry out a review of this matter. I have now completed this review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Council and the appellant as outlined above and to correspondence between this Office and both the Council and the appellant on the matter. In addition, I have had regard to:
7. During the course of this review, the Council provided this Office with a schedule listing 255 records, which it identified as relevant to the appellant’s request and refused in full. The Council also provided us with copies of those records and one additional record, which had not been listed. In referring to the records identified and refused, I have numbered them 1-256 and also indicated the reference number given on the Council’s schedule (e.g. Record 197 / COCT20-7).
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, the Commissioner’s role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, this Office will require the public authority to make available environmental information to the appellant.
10. The scope of this review is confined to whether the Council was justified, under articles 8(a)(i) and 9(2)(c) of the AIE Regulations, in refusing access to information sought by the appellant relating to surveys of baseline ecological conditions carried out in 2020 in respect of identified lands.
11. A review by the Commissioner is considered to be de novo, which means that it is based on the circumstances and the law at the time of the decision. Accordingly, I consider it appropriate to examine the applicability of the additional exemption cited by the Council in its submissions to this Office, which is article 8(a)(i) of the AIE Regulations, notwithstanding the fact that the provision was not originally relied upon by the Council in its internal review decision.
Records identified as relevant and refused by the Council
12. I note that the Council has refused access in full, under articles 8(a)(i) and 9(2)(c) of the AIE Regulations, to 256 records that it identified as relevant to the appellant’s request. The records can generally be described and categorised as follows:
13. It is important to note that a public authority must have appropriate regard to the scope of the request when identifying records/information to be considered for release under the AIE Regulations. In this respect, a number of issues arise in this case:
14. While there is no obligation on public authorities to provide a schedule of all relevant records considered with its decisions, it is best practice to do so. In this case, neither the schedule provided by the Council to this Office, nor any other schedule, appears to have been given to the appellant with the original or internal review decisions. In addition, those decisions simply refer generally to four further ecological assessments being carried out and their associated reports/documents. The decisions make no specific reference to any other information or emails. This suggests to me that the vast majority of the records provided to this Office had not been identified or examined at original or internal review stage.
15. In light of the above, I am not satisfied that a proper assessment was carried out by the Council to determine if the 256 records, and/ or the information contained therein, fall within the scope of the appellant’s request, and therefore should be considered for release under the AIE Regulations.
16. As noted, I understand that the Council has refused access in full, under articles 8(a)(i) and 9(2)(c) of the AIE Regulations, to 256 records that it identified as relevant to the appellant’s request. Notwithstanding my view regarding the Council’s failure to properly assess what records fall within the scope of the appellant’s request, for the sake of completeness I will now turn to comment on the Council’s consideration of the exemptions.
17. Article 8(a)(i) 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 personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law. This provision seeks to transpose Article 4(2)(f) of the AIE Directive, which in turn is based on Article 4(4)(f) of the Aarhus Convention.
18. Article 9(2)(c) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. This provision transposes Article 4(1)(d) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention.
19. Articles 8(a)(i) and 9(2)(c) must also be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information. Article 10(6) of the AIE Regulations states that where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.
20. As the Council ought to be aware, 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 stages, 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 Articles 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).
21. When relying on article 8(a)(i) of the AIE Regulations a public authority must show that the information at issue is personal information relating to a natural person, who has not consented to its disclosure; that the confidentiality of that personal information is provided 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 information that has actually been withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
22. In its submissions to this Office, the Council contended that article 8(a)(i) applies to all of the records refused, as they relate to communications between staff in the Council and third party consultants. It stated that many of these communications include the names, contact details, and commentary/opinion of individuals who have not consented to the disclosure of such information. It also contended that such information is considered to be protected by data protection legislation.
23. While the Council outlined generally the type of information which it considered to be personal information/data relating to individuals who had not consented to its disclosure, it made no specific reference to any of the records refused or information contained therein. Many of the individuals referred to in the records are Councillors, Council staff, consultancy staff, and consultant ecologists. I note that some of those individuals and details relating to them are mentioned, for example, on the Council’s website and in the November Report. Accordingly, it seems that certain information contained within the records cannot be said to have the quality of confidence required to engage article 8(a)(i) of the AIE Regulations.
24. In addition, other than stating that the information is considered to be protected by data protection legislation, the Council provided no further explanation as to whether the confidentiality of the information is protected by law, nor did it identify the specific data protection law upon which it was relying. It is important to note that data protection legislation does not prohibit public authorities from processing AIE requests where the records sought contain personal data. Article 86 of the GDPR provides that personal data in official documents held by a public authority or a public body or a private body for the performance of a task carried out in the public interest may be disclosed by the authority or body in accordance with Union or Member State law to which the public authority or body is subject in order to reconcile public access to official documents with the right to the protection of personal data pursuant to the GDPR. Section 44 of the Data Protection Act 2018 provides that, for the purposes of Article 86 of the GDPR, personal data contained in environmental information may be disclosed where the information is made available under and in accordance with the AIE Regulations pursuant to an AIE request. It is clear that while the GDPR and the Data Protection Acts require that the entitlements of requesters under the AIE Directive and the AIE Regulations be balanced with the rights of natural persons to have their personal data protected and processed in accordance with data protection law, they do not provide for a blanket prohibition on the disclosure of personal data as part of an AIE request. It also appears to me that the AIE Regulations seek to reconcile public access to official documents with the right to the protection of personal data in the manner envisaged by the GDPR. They do so by providing that refusal is only permissible in circumstances where disclosure would adversely affect the confidentiality of personal information.
25. Further, it seems that much of the information refused was prepared by individuals acting in a professional capacity, in the course of their duties, or in the course of the provision of a service for the Council. The Council made no attempt to demonstrate a clear link between disclosure of the information and any adverse effect.
26. I am satisfied that while it may be the case that article 8(a)(i) of the AIE Regulations is applicable in respect of certain records, or parts thereof (subject to article 10), there is no evidence to suggest that any substantive consideration was given to the content of the individual records, as is required, before refusing access to environmental information under the AIE Regulations.
27. When relying on article 9(2)(c) of the AIE Regulations a public authority should explain why the information at issue comes under the exemption and make it clear which limb(s) of the exemption it is invoking i.e. whether it concerns material in the course of completion and/or unfinished documents and/or unfinished data. In doing so, a public authority must consider the status of the records themselves and not the overall process to which the records relate. In addition, the mere status of a record as a draft alone does not automatically bring it under the exemption.
28. In its original and internal review decisions the Council indicated that it was refusing access to information related to four further ecological surveys being carried out under article 9(2)(c) of the AIE Regulations on the basis that it was unfinished and in the course of being completed. In its submissions to this Office, the Council contended that article 9(2)(c) of the AIE Regulations applies to all of the records refused as they concern material in the course of completion in the context of further ecological survey work that was being carried out to confirm and inform the November Report’s findings and conclusions. It explained that the survey work was undertaken in Spring 2021 and referenced in the November Report.
29. The Council provided no further detail and did not refer to any particular records or information contained therein. As noted, the records comprise documents, including documents labelled draft, and email chains. It seems to me that the Council applied article 9(2)(c) of the AIE Regulations to all of the records refused due to their relationship with the ecological survey work that was being carried out, regardless of their specific nature or content. This is not an appropriate application of the exemption. I am satisfied that while it may be the case that article 9(2)(c) of the AIE Regulations is applicable in respect of certain records/information (subject to Article 10), there is also no evidence to suggest that any substantial consideration was given to each of the records to determine if they did in fact concern material in the course of completion, or unfinished documents or data.
30. As noted, articles 8(a)(i) and 9(2)(c) must also be read alongside article 10 of the AIE Regulations. In seeking to apply article 9(2)(c) a public authority must inform an applicant of the name of the authority preparing the material concerned and the estimated time needed for completion, in accordance with article 10(6) of the AIE Regulations. I note that the Council, in its original decision, indicated that reports and documents were being prepared for the Council by the named consultancy and that the estimated time for completion was Quarter 1 2021.
31. In seeking to apply article 8(a)(i) a public authority should, in the first instance, consider whether the information at issue relates to information on emissions into the environment, in accordance with article 10(1) of the AIE Regulations. While it may be the case that article 10(1) does not apply there is no evidence to suggest that any consideration of that provision was undertaken by the Council in respect of the information at issue.
32. Additionally, the Council did not refer to a weighing of the public interest served by disclosure against the interest served by refusal in either its original decision or its internal review decision. In its submissions to this Office, it outlined its position that the release of records containing the names, commentary/opinions and contact details of individuals, which had been superseded by the November Report and related to material that was in the course of completion and was unfinished, would not serve the public interest. It also stated the release of records, which were not as complete, comprehensive, and informed as the November Report, if used out of context, could lead to imprecise and inaccurate representation of the ecological environment of the lands in question and would not be in the public interest. However, it gave no further explanation or detail regarding any balancing exercise carried out, in line with articles 10(3) and 10(4) of the AIE regulations.
33. The Council also did not properly deal with whether partial disclosure was possible in line with article 10(5) of the AIE Regulation.
34. Finally, it is important to note that, while it is very clear that the records refused contain third party information, no third parties appear to have been consulted or notified by the Council when processing the request.
35. Having regard to all of the above, it appears to me that the Council adopted a “blanket approach” to its refusal of the 256 records by failing to properly assess whether the records/information contained therein actually fall/s within the scope of the appellant’s request and by relying on articles 8(a)(i) and 9(2)(c) of the AIE Regulations, regardless of the nature or content of the records and without giving adequate consideration to article 10. As highlighted, 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 stages, consistent with Article 4(5) of the AIE Directive. It is clear that the Council did not provide adequate reasons for refusal in this case. It is most disappointing that the Council does not appear to have fully engaged with its obligations under the AIE Regulations.
36. In the circumstances of this case, particularly in light of the amount of information involved, the lack of clarity regarding the information that actually falls to be considered for release, and, crucially, the presence of third party information, l do not believe that it is appropriate to direct the release of information at this point. I acknowledge that this will come as a disappointment to the appellant, especially given the length of time that has now passed since the request, for which I apologise. I consider that the most appropriate course of action to take is to annul the Council’s decision in its entirety and direct it to undertake a fresh decision-making process in respect of the appellant’s request. The appellant will have a right to an internal review and a review by this Office if she is not satisfied with the Council’s decision.
37. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I hereby annul the Council’s decision in this case. I direct the Council to undertake a fresh decision making process in respect of the appellant’s request.
38. 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.
Deirdre McGoldrick, on behalf of the Commissioner for Environmental Information