Decision
Ms X and The Department of Climate, Energy and Environment
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-149398-M1S2Q6
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-149398-M1S2Q6
Published on
Whether the Department was justified, on the basis of article 8(a)(iv), article 9(2)(c) and article 10 of the AIE Regulations, in refusing to provide access to the requested material.
17 September 2025
1. On 31 January 2024, the appellant made a request to the Department for the following:
“Please provide, by email, for the period 5 July 2023 to 31 January 2024 (both dates inclusive), all correspondence and records, both internally within the DECC, and between DECC and other external authorities (DAFM, EU, European Commission etc) , relating (in whole or in part) to the European Commission's proposed Directive on Soil Monitoring and Resilience (as proposed on 5 July 2023) .”
2. The Department identified 147 relevant records. On 14 March 2024, it refused the request in its entirety, citing article 8(a)(iv), article 9(2)(c) as the basis for the refusal, having applied article 10(3) and 10(4) of the AIE Regulations.
3. On 12 April 2024, the appellant sought an internal review of the Department’s decision; this decision was issued on 7 May 2024. The original decision was varied, in that, some of the internal correspondence identified was released, as it was found not to fall under articles 8(a)(iv) and 9(2)(c) of the AIE Regulations. Access to all other documents within the scope of the request was refused, however, under the same articles of the AIE Regulations.
4. The appellant appealed to my Office on 28 May 2024.
5. I am directed by the Commissioner to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. In accordance with article 12(5) of the AIE Regulations, my role is to review the Department’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Department to make available environmental information to the appellant.
8. The scope of this review is to determine whether the Department was justified in failing to provide access to the requested material on the basis of exceptions under article 8(a)(iv) and article 9(2)(c) of the AIE regulations, if necessary, having regard to article 10 of the AIE Regulations.
9. The appellant, in her submission dated 10 June 2024, stated that the Department “provided 29 copy records (approximately 20% of records listed by DECC on the accompanying schedule to the decision), but refused approximately 116 records (around 80% of all records listed) under Article 8(a)(iv) and Article 9(2)(c).”
10. She said that there are 17 attachments to emails within the 29 records released; none of the attachments have, however, been provided to her. The 29 records provided range in date from 29 August 2023 to January 2024.
11. She contended that Article 9(2)(c) does not apply “given that the email dated 23 January 2024 (timed at 13.28) shows the status as 'Completed.' She stated that, even if the process is not yet completed, the records refused by the Department are themselves completed records. She asked to be provided with all the records within the scope of her request, including the 17 attachments to the records already provided.
12. In its submission, dated 2 July 2024, the Department stated that, at the time of request, the information requested was still part of the deliberative process as the proposed Directive on Soil Monitoring and Resilience was in development at EU level. It contended that, therefore, the information falls under the exemptions under article 8(a)(iv) and article 9(2)(c) of the AIE Regulations. It elaborated on this position in its submission of 8 September 2025, stating that policies that are still in their development stage are exempt for AIE Request and “disclosure of these records would compromise the confidential produce that is practiced within EU policy development.” It said that the Soil Monitoring and Resilience Directive has been translated into the official languages of the EU and is awaiting approval by the European Parliament and the Council of the EU before being adopted.
13. The Department cited section 29(1) of the Freedom of Information Act which outlines that a request may be refused if it contains information relating to the deliberative process of an FOI body.
14. Furthermore, the Department stated “the Soil Monitoring and Resilience Directive is a large piece of legislation that encompasses many stages of negotiation, drafting, approval and adoption. While some stages may be completed ie the working party meetings, the development of the policy has not. These documents relate to various elements of the developmental process rather than being independent pieces of work in themselves. Therefore, it is the Department’s understanding, that all materials remain confidential until adoption as per Article 9 (2) (c).”
15. Article 8 (a)(iv) of the AIE Regulations permits refusal to disclose information where to do so would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law.
16. It 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). This provision seeks to transpose Article 4(2)(a) of the AIE Directive, which in turn is based on Article 4(4)(a) of the Aarhus Convention.
17. 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.
18. 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).
19. 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.
20. 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).
21. In respect of the present appeal, while the Department has referred to “the deliberative process” regarding “the proposed Directive on Soil Monitoring and Resilience” which “was in development at EU level”, the Department failed to identify any “proceedings”. It has not sufficiently set out how the requested information relates to the deliberation stage of the final stages of decision-making of the public authority. As referred to Article 4(4)(a) of the Aarhus Convention clarifies that the concept of “proceedings” does not relate to the entire administrative procedure at the end of which public authorities hold their proceedings. The Department has indicated that the matter has progressed to EU level, awaiting approval. However, the Department has not adequately explained how its deliberations play into the EU process or how its deliberations amount to final stages of decision-making. It is also unclear how the records at issue relate to those deliberations.
22. Furthermore, while the Department referred to section 29(1)(a) of the FOI Act 2014, 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).
23. While the Department has stated that “these records would compromise the confidential produce that is practiced within EU policy development”, this lacks specificity. The Department failed to identify any “adverse effect” that would arise as a result of the disclosure of the specific information at issue or any clear link between disclosure of the specific information withheld and any adverse effect. With regard to the confidentiality element of article 8(a)(iv) of the AIE Regulations, other than referring to section 29 of the FOI Act, the Department has not adequately provided any specific basis for the confidentiality.
24. In addition, regarding articles 10(3) and 10(4) of the AIE Regulations, the Department simply stated “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 all of the information you request. However, some records can be released. Those withheld relate to providing the space for an FOI body during an unfinished deliberative process in agreeing/negotiating international legislation.” The Department did not give 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.
25. Having considered the decision-making records and the submissions of the Department, I find that the Department did not provide adequate reasons for refusal of the records at issue and, due to that, I cannot find that the Department’s refusal of the information sought is justified.
26. 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. This exemption is not harm-based. It is not necessary for the public authority to show that there is any adverse effect in respect of the release of the information at issue to engage the exception, just that the information concerns material in the course of completion, or unfinished documents or data, although, as noted below, there is still a requirement to then consider the public interest.
27. Article 9(2)(c) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. As discussed above, in the context of article 8(a)(iv) of the AIE Regulations, 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, the grounds for refusal of a request shall be interpreted on a restrictive basis and consideration must be given as to whether it is possible to separate and make available information held with information to which article 8 or 9 relates. 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.
28. When relying on article 9(2)(c) of the AIE Regulations, the public authority should explain why the information at issue falls within the scope of the exception, outlining which limb(s) of the exception is being relied upon. It is then for the public authority to weigh the public interest served by disclosure against the interest served by the refusal as is required by articles 10(3) and 10(4). I note the comments of the CJEU in Case C-619/19, Land Baden-Württemberg v DR (Land Baden-Württemberg):
“…[A] public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.” (paragraph 69)
29. The terms “material in the course of completion” and “unfinished documents or data” are not defined in the AIE Regulations, AIE Directive, or the Aarhus Convention. However, the decisions of the CJEU in Land Baden-Württemberg, and Case C-234/22, Roheline Kogukond MTÜ and Others v Keskkonnaagentuur (Roheline Kogukond MTÜ), provide some guidance on the exception.
30. While Land Baden-Württemberg more specifically concerned the internal communications exception (discussed in further detail below), the Court indicated that both the internal communications exception and the exception concerning material in the course of completion and unfinished documents or data are “intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions” (see paragraph 44).
31. In Roheline Kogukond MTÜ, which dealt with the question as to whether data on the location of permanent sample plots for a statistical forest inventory were to be classified as material in the course of completion or unfinished documents or data, the Court referred to the decision in Land Baden-Württemberg. In considering the material in the course of completion and unfinished documents or data exception, it noted at paragraphs 37 to 41:
“The referring court asks, in the first place, whether disclosure of the coordinates for the location of the permanent sample plots used for the periodic collection of data with a view to drawing up a national statistical forest inventory may be refused on the basis of point (d) of the first subparagraph of Article 4(1) of Directive 2003/4, which allows Member States to refuse a request for environmental information relating to documents in the course of completion or to unfinished documents or data.
Although the concepts of ‘material in the course of completion’ and ‘unfinished documents or data’ are not defined by [the AIE Directive], it is apparent from the explanations relating to Article 4 of the Proposal for a Directive of the European Parliament and of the Council on public access to environmental information presented by the Commission on 29 June 2000 (COM(2000) 402 final) (OJ 2000 C 337 E, p. 156) that the purpose of that exception is to meet the need of the public authorities to have a protected space in which to pursue internal considerations and debates (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 44). The Court has also held that, unlike the ground for refusing access provided for in point (e) of the first subparagraph of Article 4(1) of Directive 2003/4 relating to internal communications, that provided for in point (d) of the first subparagraph of Article 4(1) of the directive relates to the preparation or drafting of documents and is therefore of a temporary nature (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 56).
That interpretation is corroborated by that of Article 4(3)(c) of the Aarhus Convention, which provides for an exception to the right of access to environmental information in relation to documents in the course of completion, and by the explanations contained in the document entitled “The Aarhus Convention: An implementation guide (second edition, 2014)” published by the United Nations Economic Commission for Europe, which, although it has no normative value, is one of the elements that may guide the interpretation of that convention (see, to that effect, judgment of 16 February 2012, Solvay and Others, C-182/10, EU:C:2012:82, paragraph 27).
The location coordinates of permanent sample plots used for the collection of data for drawing up a national statistical forest inventory cannot be regarded as documents in the course of completion or as unfinished documents or data when they relate to the state of the forest on a given date.
The fact that those sample plots are used to measure developments in the state of forest resources and soils in successive statistical forest inventories or other reports does not call that conclusion into question. To interpret it otherwise would be tantamount to allowing the exception provided for in point (d) of the first subparagraph of Article 4(1) of Directive 2003/4 to be applied without any time limit, even though that exception is, as has been pointed out above, of a temporary nature.”
32. As indicated above, the first question to be addressed is whether or not article 9(2)(c) of the AIE Regulations is engaged on the basis that the information at issue “concerns material in the course of completion, or unfinished documents or data” (i.e. which limb(s) of the exemption is being relied upon).
33. It is this Office’s view that “material in the course of completion” relates to the process of preparing information/documents. The Aarhus Guide states that “the expression ‘in the course of completion’ relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared.” However, this Office considers that the factual circumstance of each case is relevant to assess and considers that this exemption may apply in two ways, firstly, to information that is itself in the course of completion or unfinished, but, secondly, to information that while notitself material in the course of completion or unfinished, sufficientlyconcerns the material in the course of completion or unfinished information.
34. The Aarhus Guide also includes the following commentary:
A request for access to raw environmental data cannot be refused on the grounds that it is “material in the course of completion” to be made publicly available only after processing or correction factors have been applied. In its findings on ACCC/C/2010/53 (United Kingdom), the Committee considered whether raw air pollution data collected from a monitoring station and not yet subject to data correction could be exempted from disclosure as “material in the course of completion”. The Committee considered that the raw data was itself environmental information within the meaning of article 2, paragraph 3 (a), of the Convention. […]
Similarly, the mere status of something as a draft alone does not automatically bring it under the exception. The words “in the course of completion” suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the “course of completion” they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. “In the course of completion” suggests that the document will have more work done on it within some reasonable time frame. Other articles of the Convention also give some guidance as to how Parties might interpret “in the course of completion”. Articles 6, 7 and 8 concerning public participation require certain draft documents to be accessible for public review. Thus, drafts of documents such as permits, EIAs, policies, programmes, plans and executive regulations that are open for comment under the Convention would not be “materials in the course of completion” under this exception.
35. I consider that the purpose of this exemption is to give public authorities time and private space to draft and amend documents that they are preparing before they are finalised. The European Commission acknowledged this interest in its First Proposal for the AIE Directive, as did the Court of Justice of the European Union in Case C 619/19 Land Baden-Württemberg v. D.R. at paragraph 44. I emphasise that this interest is in maintaining the confidentiality of draft documents while they are still being actively worked on, rather than in maintaining the confidentiality of completed documents pending the conclusion of decision-making process.
36. In Roheline Kogukond MTÜ, the information at issue concerned location coordinates of permanent sample plots used to draw up the Estonian statistical forest inventory. The CJEU noted that “the permanent sample plots, the location coordinates of which are requested…, are sampling units used for the periodic collection of data with a view to drawing up, by extrapolation, statistical reports on forest stands in Estonia and on land use and development. Those sample plots are located on the sides of 64- hectare square plots, chosen for their representative nature of the state of the forest and soils.” The CJEU held that “[t]he location coordinates of permanent sample plots used for the collection of data for drawing up a national statistical forest inventory cannot be regarded as documents in the course of completion or as unfinished documents or data when they relate to the state of the forest on a given date. It noted that “the fact that those sample plots are used to measure developments in the state of forest resources and soils in successive statistical forest inventories or other reports does not call that conclusion into question. To interpret it otherwise would be tantamount to allowing the exception…to be applied without any time limit, even though that exception is…of a temporary nature.”
37. Advocate General Kokott in her Opinion commented “the data on the location of the permanent sample plots of the statistical forest inventory are already available in full and therefore do not fall into any of the three categories [provided for in the exception]” (paragraph 60). She further stated, at paragraphs 61 to 64:
“The fact that the data on the location of the permanent sample plots of the statistical forest inventory are to be used to regularly produce further reports on the state of the forests does not change that. Those reports and the information collected therein may at certain times fall under the abovementioned categories of cases and thus within the exception pursuant to Article 4(1)(d) of the Environmental Information Directive. However, that does not mean that the location data may be withheld. While they are explicitly or implicitly part of the reports, they are significant in their own right regardless of the individual reports, which may not yet have been completed. That is also demonstrated by the fact that those location data not only form the basis of reports that are still being processed, but – as the Environment Agency acknowledges – also form the basis of reports that have already been completed in the past.
The above considerations on the possibly limited interest of the public in the disclosure of the location data do not change the conclusion. They do not change the fact that the location data are part of operations that have already been completed.
It would be contrary to the temporary nature of that exemption to apply it indefinitely to certain data by reason of the repeated use of that data, even though the data has already been definitively established. Rather, the exception is intended to apply only during a specific period, that is to say during the processing of materials, documents and data. The idea of a time-limited application of that exception is confirmed by the second subparagraph of Article 4(1) of the Environmental Information Directive, according to which a refusal to disclose material that is in the process of being completed must already indicate when the material is expected to be complete.
Therefore, data on the location of the permanent sample plots of a regularly repeated statistical forest inventory do not constitute material in the process of being completed, nor are they documents which have not yet been completed or data which have not yet been processed for the purposes of Article 4(1)(d) of the Environmental Information Directive.”
38. I wish to reiterate that the particular factual scenario in each individual case must be considered and, in addition to the specific information at issue, is a key factor in assessing the application of article 9(2)(c) of the AIE Regulations. Cases are often distinguished on their facts.
39. As stated above, I am satisfied that article 9(2)(c) of the AIE Regulations can be relied upon in circumstances both where the information itself is, for example, “material in the course of completion” or “unfinished data”, and where the information concerns “material in the course of completion” or “unfinished data”.
40. I consider that “material in the course of completion” refers to the process of preparing “material” that is itself being actively worked on (just because something is labelled “draft” does not necessarily mean it is “in the course of completion”). However, while information no longer being actively worked on may not itself be “material in the course of completion” it may concern material in the course of completion. In assessing whether the information at issue concerns “material in the course of completion”, I am of the view that it is necessary to identify material that is actively being worked upon, be able to explain why, and how, the information at issue concerns that material, and consider whether the information at issue is a separate and independent piece of work to that material – if the information at issue is a separate and independent piece of work, the exception will not be applicable. I also consider that the material that is actively being worked upon must have a physical existence (it cannot be something that does not have a physical existence (e.g. a project, exercise or process, although it can be part of same). For example, an overarching project, even if it is not complete, cannot be considered to be “material in the course of completion”, however individual documents that form part of the project might be if they have not yet been completed.
41. As discussed in the context of article 8(a)(iv) of the AIE Regulations, 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.
42. With regard to the present appeal, the Department has not explained why the information at issue falls within the scope of the exception, outlining which limb(s) of the exception is being relied upon. It is not clear that the material at issue constitutes “material in the course of completion”; the Department has not pointed to material being actively worked on and has, in fact, indicated that, referring to the development of the Soil Monitoring Directive, “some stages may be completed”.
43. The second question to be considered is whether the information sought “concerns” material in the course of completion such that it comes within the exemption provided for in article 9(2)(c). The Department has stated “the Soil Monitoring and Resilience Directive is a large piece of legislation that encompasses many stages of negotiation, drafting, approval and adoption. While some stages may be completed ie the working party meetings, the development of the policy has not. These documents relate to various elements of the developmental process rather than being independent pieces of work in themselves. Therefore, it is the Department’s understanding, that all materials remain confidential until adoption as per Article 9 (2) (c).”
44. My understanding of the Department’s case is, therefore, that the information sought concerns the Soil Monitoring and Resilience Directive, a proposed piece of legislation, and due to this, the information sought is exempt for the purposes of article 9(2)(c) of the AIE Regulations. While this may be sufficient to bring the records within the exemption, I am not satisfied that the Department has adequately set out how the relevant records each directly concern the unfinished directive, or whether it has considered whether any or all of the records are separate and independent pieces of work. Simply because the records relate in some way to the piece of legislation does not mean that they are exempt from release; as set out above, it is for the Department to set out how the release of the information would specifically and actually undermine the interest being protected.
45. Furthermore, regarding articles 10(3) and 10(4) of the AIE Regulations, the Department simply mentioned those articles and stated that it had weighed the public interest served by disclosure against the interest served by refusal, determining that the public interest would not be served by disclosing the information. The Department gave no indication of any factors in favour of or against release and provided no explanation of any balancing exercise carried out. While the Department stated that each record was considered on an individual basis, given the lack of reasoning provided in the decision-making records, I cannot find that this was done in an adequate manner. I would also note that there is a significant amount of information regarding the proposed legislation in the public domain, which may affect the weighing of the public interest in this case.
46. It also gave no consideration of whether partial disclosure of any of the records refused was possible in line with article 10(5) of the AIE Regulations. Some of the information requested, for example, simply concerns the logistics of organising meetings and I cannot see how this would be considered to be exempt from release. Finally, the Department did not address article 10(6) of the AIE Regulations. I consider that the Department has simply sought to apply article 9(2)(c) in a blanket manner and has not given adequate reasons for the refusal of the information sought.
47. Having regard to all of the above, I cannot find that the Department’s decision to refuse access to the records under article 9(2)(c) of the AIE Regulations is justified.
48. 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 8(a)(iv) and 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.
49. In reaching this conclusion, while I appreciate that this causes delay for the appellant, I do not believe that it is appropriate for this Office to direct release of the information at this point. Furthermore, this Office has a significant backlog of appeals and I consider that it is not the best use of resources to carry out the task of reviewing information which does not appear to have been done by public authorities in the first instance, particularly given the number of records at issue in this case. I understand that this may be frustrating for the appellant but I consider that the AIE regime is best served by remittal in this case. Should the Department not correctly engage with its obligations under the AIE regulations when carrying out a new internal review decision-making process, I may have to consider simply ordering release of the information.
50. In re-considering the request, should the Department wish to rely on article 8(a)(iv) and 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), (5) and, where applicable, (6). The Department should also in particular note its obligation in article 10(4) to interpret the exemptions on a restrictive basis having regard to the public interest served by disclosure.
51. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul the Department’s decision to refuse access to the 147 records (including all attachments) at issue under article 8(a)(iv) and article 9(2)(c) of the AIE Regulations. I direct the Department to carry out a fresh internal review decision-making process in respect of those records.
52. 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