Decision
Mr N and Kildare County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-138881-C7G7S0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-138881-C7G7S0
Published on
Whether the Council conducted adequate searches such as to identify all information relevant to the appeal, in accordance with the requirements of article 7(5) and whether the Council was justified, in refusing access to information sought by the appellant, under article 9(1)(c) of the AIE Regulations
19 August 2025
1. On 02 March 2023, the appellant submitted a request to Kildare County Council seeking access to the following:
“1.Communications with the National Transport Authority (“NTA”), including submissions made to the NTA, in the context of the preparation of the Greater Dublin Area Transport strategy (“GDATS”) in relation to new rail stations “west of Louisa Bridge”, “west of Maynooth” and at “Collinstown” as referred to in the GDATS.
2.Communication with the NTA since the adoption of the GDATS in relation to new rail stations “west of Louisa Bridge”, “west of Maynooth” and at Collinstown” as referred to in the GDATS.
3.Communications with the NTA, including submissions made to the NTA, in the context of the preparation of the GDATS in relation to new strategic Park and Ride site “west of Louisa Bridge” and/or at “Collinstown”.
4. Communication with the NTA since the adoption of the GDATS in relation to new strategic Park and Ride site “west of Louisa Bridge” and/or at “Collinstown” as referred to in the GDATS.
5. Information on the masterplan for Collinstown as referred to Objective COL 1.1 of the in the Leixlip Local Area Plan 2020 – 2023 including but not limited to (i) a copy of masterplan or draft masterplan(s) completed to date, (ii) communications with third parties, stakeholders and landowners in relation to the to the preparation of the masterplan for Collinstown, (iii) communications with Intel Ireland Limited in relation to the masterplan for Collinstown, (iv) the identity and roles of consultants engaged by Kildare Co Co in the preparation of the masterplan for Collinstown and (v) the projected completion date for the masterplan for Collinstown (if not completed already).
6. Information on the masterplan for Confey as referred to Objective CON 1.1 of the in the Leixlip Local Area Plan 2020 – 2023 including but not limited to (i) copy of masterplan or draft masterplans completed to date, (ii) communications with third parties or stakeholders and landowners in relation to the to the masterplan for Confey, (iii) communications with Intel Ireland Limited in relation to the masterplan for Confey (iv) the identity and roles of consultants engaged by Kildare Co Co in the preparation of the masterplan for Confey and (v) the projected completion date for the masterplan for Confey (if not completed already)”.
2. On 13 March 2023, the Council extended the timeframe to deal with the request by one month due to the number of records that needed to be examined and informed the appellant they would be notified of a decision by 25 April 2023.
3. On 25 April 2023, the Council part granted access and provided a schedule of documents detailing information available and outlining what information was being provided.
4. On 27 April 2023, the appellant requested an internal review of the Council’s decision regarding parts 2, 3, 4, and 5 of the request and submitted their observations on what they viewed as incomplete information.
5. On 25 May 2023, the Council issued its internal review decision and addressed the queries raised by the appellant.
6. On 30 May 2023, the appellant submitted an appeal to this Office stating,“I am appealing the decision made by Kildare Co Co in relation to parts 2, 3, 4 & 5 of the request”.
7. The appellant had submitted an appeal stating,“there are significant gaps in the information provided and the information is substantially incomplete”. The appellant also maintained the Council had incorrectly relied on exemptions under article 9(1)(c), 9(2)(d), and 8(a)(ii) of the AIE Regulations. The appellant had submitted his internal review request and appeal to this Office in relation to items 2 to 5 of his request.
8. The Council had refused access to letters issued to and received from landowners regarding ownership of folios in September 2020 and January 2023, under Article 8(a)(i), and 8(a)(ii), which was item 6 of the appellant’s request and did not form part of his appeal. In relation to item 5 of the appellant’s request The Council initially refused access to two items, an email regarding Collinstown Masterplan dated 15 February 2022 and correspondence from a Landowner dated 24 March 2022. The Council refused access under article 9(1)(c) as“releasing the information submitted by the landowner would adversely affect the commercial interest of the landowner” . A redacted copy of this email and letter were subsequently provided by the Council to the appellant on 27 July 2023. The Council had not relied on Article 9(2)(d) of the AIE regulations.
9. On 31 March 2025, this Office communicated with the appellant and on 14 April 2025 the appellant confirmed they wished to continue with their appeal and sought unredacted copies of the records provided to him on 23 July 2023.
10. 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 Kildare County Council In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
11. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
12. In accordance with article 12(5) of the AIE Regulations, my role is to review the Council’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.
13. As such this appeal is concerned with whether the Council conducted adequate searches such as to identify all information relevant to the appeal, in accordance with the implicit requirement of article 7(5), and whether the Council was justified, in refusing access to information sought by the appellant, under article 9(1)(c) of the AIE Regulations.
14. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information or any further environmental information is held by or for the public authority concerned. It provides as follows:
“Where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it”.
15. This Office’s approach to dealing with this type of case is to assess whether adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness is applied.
16. What will be considered reasonable will vary from case to case, but as a general guide, I set out below the type of information that my Office would generally expect to be set out in a decision where a public authority is relying on article 7(5) of the Regulations;
(i) an outline of exactly which areas/units etc. of the organisation were searched for the information;
(ii) an explanation of how searches were carried out (i.e. manually, by computer, by name, by key words). Keywords should be recorded and provided in the decision as appropriate;
(iii) details of the individuals consulted in connection with the search;
(iv) a description of the searches carried out to cover the possibility of misfiled/misplaced records;
(v) details of guidelines, practices, procedures and arrangements in relation to the storage, filing, archiving, retention and destruction of the type of information requested in this case;
(vi) the basis on which the public authority has concluded that it does not hold any information within the scope of the appellant’s request and that no such information is held by any other person or body on its behalf.
17. Article 7(5) of the AIE regulations allows a public authority to refuse a request if it does not hold the requested information. In order for a public authority to successfully rely on this provision, it must, among other things, provide evidence that it carried out adequate searches for the environmental information requested.
18. The Council maintains that it has released all environmental information relevant to the appellant’s request. The Council reported that communications relating to Greater Dublin Area Transport Strategy (GDATS), park and ride proposals, and masterplans for Collinstown and Confey have been released. The Council asserts that records of certain meeting were not kept due to the informal nature of the interactions, such as telephone calls and that it does not retain minutes of telephone conversations.
19. The Council initially refused access to two items, an email regarding Collinstown Masterplan dated 15 February 2022 and correspondence from a Landowner dated 24 March 2022. The Council refused access under article 9(1)(c) as“releasing the information submitted by the landowner would adversely affect the commercial interest of the landowner” . The Council also noted that the landowners had not given consent for their information to be shared and there was an expectation of confidentiality during communications about land ownership and development potential. While the Council initially withheld these records, it subsequently provided a redacted copy of this email and letter to the appellant on 27 July 2023. The Council did not provide a detailed explanation for the application of exemptions to individual redactions or identify the specific commercial interests at risk.
20. The appellant argues that the Council failed to conduct comprehensive or adequate searches for the requested environmental information. The appellant provided a detailed critique of the Council’s responses, highlighting what they viewed as inconsistencies and incomplete disclosures. The appellant argued assertions about oral communication lacked evidential support and suggested that email chains and meeting minutes were missing or incomplete.
21. The appellant noted that the project charter for the Collinstown Masterplan referred to engagement with 16 stakeholders, yet no correspondence with any party other than a single landowner was released. The appellant argued additional records should exist and there must be additional correspondence between the Council, third parties, stakeholders and landowners and maintains the Council’s searches were inadequate. The appellant specifically requested the Council provide a full copy of the presentation made in respect of the 4 P&R sites referred to in the minutes and maintain they were provided with the header of an email but not the actual email.
22. On 22 April 2025, this Office sought further submissions from the Council seeking clarity on the searches conducted and the Council’s reliance on an exemption under Article 9(1)(c) of the AIE regulations.
23. On 20 May 2025, the Council provided further information on the searches conducted and confirmed an additional 14 records were released to the appellant. It is important to note that items 2 and 4 of the AIE request specified“Communication with the NTA, since the adoption of GDATS..”. The Council have confirmed the GDATS was published on the 24 January 2023. The appellant submitted his AIE request on 02 March 2023. The request for communications with the NTA is therefore limited to a 38-day period. The Council have detailed that communications in relation to strategic infrastructure projects take place at a senior level and the Director of Planning and the Senior Planner of the Planning Department have confirmed there are no relevant records for this period. Additionally, a search was conducted of an electronic folder titled ‘NTA’ and no relevant records were identified. I am of the view the Council have demonstrated adequate searches and it is not unexpected for there to be no communication between the Council and the NTA for what is a limited duration.
24. In a submission to this Office on 01 September 2023, the appellant raised concerns that they had not been provided with a full copy of a presentation and some of the emails provided only consisted of a header and not the full content. The Council have confirmed to this office that the emails have been provided in full and some emails consisted of“a forwarded email with no text”. The Council identified two additional records, an email and a presentation and have provided these to the appellant. This presentation is titled ‘Park and Ride Development Office Progressing 4 Kildare based P&R Sites to Planning” and is the full presentation which had been sought by the appellant.
25. The Council confirmed to this Office the two emails which the appellant had queried were in fact the full emails and had been provided in full to the appellant. The Council stated the presentation from the NTA was the same as had been sent with the email of the 22nd of December 2021 and had been provided to the appellant. The Council identified two additional records in relation to the Presentation which have now been provided to the appellant.
26. In relation to the appellants request for“Information on the masterplan for Collinstown” , the Council confirmed to the appellant that no masterplan had been prepared or completed but a Project Brief and Project Charter had been prepared and these were provided to the appellant. The Council have confirmed the formal process for the development of the Collinstown masterplan did not commence until the 19 May 2023, which was subsequent to the AIE request. The Council confirmed a search was conducted of a folder titled ‘Collinstown Masterplan‘ and“correspondence 2023” ,“but this folder was only opened on the 19th of May 2023 which is after the date we issued our AIE decision”. The Council sated“we did not have the records that the Appellant is searching for relating to the Masterplan as our Masterplan process did not commence until after the AIE request was received and after our AIE decision issued”.
27. In relation to part 5 of the appellant’s request the Council stated;
“The Council did not formally commence the Council’s Collinstown Masterplan process until the 19th of May 2023. The Kildare County Council’s Draft Collinstown Masterplan was not issued to landowners for comment until the 20th of December 2023. The Masterplan itself was not finalised until 31st of July 2024 and was published on the Council’s website at that stage. The file was also available to the public at that time. However, it is important to note an Order of Certiorari was granted to Killross Properties quashing that Masterplan and that Order was perfected on the 17th of December 2024 and the Masterplan documents subsequently removed from the Council’s website. The Appellant queried why there wasn’t more correspondence with the landowners with regard to Collinstown, however it was only one particular Landowner who was looking to pre-empt the Masterplan process and submitted their own Masterplan to the Council and while access to that Masterplan document was initially refused to the Appellant, it was ultimately released (released to the Appellant on the 27th of July 2023) after consent had been received from the landowner”.
28. Following a request for submissions from this Office the Council identified an additional 14 records which were provided to the appellant on 22 June 2025. This Office contacted the appellant to seek confirmation if they were now satisfied with the records provided and the explanations provided by the Council to the appellant’s queries. The appellant maintained communications exist between the Council and Intel and these had not been provided. This related to item 5(iii) of the appellants request“communications with Intel Ireland Limited in relation to the masterplan for Collinstown” . On the 23 June 2025 this Office sought further details from the Council regarding the searches conducted for communications between the Council and Intel. The Council did not respond to this Office’s request for further details. While I note the appellants request was submitted on the 02 March 2023 which predated the Council’s commencement of the Collinstown Masterplan, in the absence of further details on the searches conducted for communications between Intel and the Council I cannot be satisfied that all relevant records have been identified in respect of this part of the request.
29. Given the explanations provided by the Council and the records which have been provided in respect of the other parts of the request, I am satisfied the Council have engaged with the appellant and identified and provided the relevant records they have in relation to the request with the exception of item request 5(iii).
30. The appellant maintains the Council cannot reply on article 9(1(c) as the Council have failed to provide a specific explanation of how the release would adversely affect any commercial interest. The appellant asserted the Council did not identify the legitimate economic interest at stake or explain how confidentiality was legally protected. The appellant questioned whether the Council had properly considered its obligation under article 10(5) to release information in redacted form where full release was not possible.
31. The Council had initially refused access to two records, items 11, an email dated the 15 February 2022, and 12, an email and letter dated 24 March 2022, on the schedule of records, citing article 9(1)(c) of the AIE Regulations. Following an internal review the Council provided the appellant with redacted copies of these records, and an additional email which was identified also dated the 15 February 2022, on the 27 July 2023. The appellant has confirmed to this Office that he is seeking an unredacted copy of the letter dated 24 March 2022. I will therefore consider whether the redactions applied to this letter by the Council are justified under article 9(1)(c).
32. Article 9(1)(c) of the AIE Regulations states that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. Article 9(1)(c) of the AIE Regulations must also be read alongside article 10 of the AIE Regulations.
33. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states:
“The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it” (paragraph 12.4).
34. When relying on article 9(1)(c) of the AIE Regulations a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, and thereby its confidentiality, would be adversely affected by disclosure of the information at issue. 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. A mere assertion of an expectation of harm is not sufficient.
35. The Council have stated,“We considered the redacted element of the letter of the 24th of March 2022 received from Killross to be commercially sensitive. It sets out the Commercial intentions of the developer with regards to the site and we are not releasing an unredacted version of the letter to the Appellant as to do so could put the Developer at a commercial disadvantage” . The Council has not provided any record specific justification for the application of article 9(1)(c). It has not offered an explanation of how disclosure of the records would cause commercial harm, nor has it demonstrated that the confidentiality of the record is legally protected. In order to rely on article 9(1)(c) it must be established that the confidentiality exists to protect a legitimate economic interest. In order to establish that this is the case, it must be shown that some harm would arise to that legitimate economic interest if the information sought was to be released.
36. While the Council have claimed release of the reacted letter would place the Developer at a commercial disadvantage, they have not demonstrated any material loss or any other harm or prejudice that may occur if the record in question was provided to the appellant. The Council have not established that any confidentiality is protecting a legitimate economic interest. I have reviewed the withheld material. Considering the content that has been redacted, and that the redacted letter is dated 24 March 2022, I do not see how the release of this information could adversely affect the legitimate economic interests of the company involved. Accordingly, I am not satisfied that article 9(1)(c) of the AIE Regulations applies to the information sought.
37. Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary the Council’s decision in this case. I affirm its decision in respect of parts 2, 3, 4 of the appellant’s request. I find that the Council have not taken adequate steps to identify all information relating to part 5(iii) of the appellant’s request (communications between the Council and Intel) and I annul the decision in respect of this part of the request. The Council should provide the requestor with a new internal review decision in respect of this part of the decision, detailing the steps taken to search for and identify information relevant to this part of the request. Finally, I annul the Council’s decision to redact certain parts of the letter dated 24 March 2022 in reliance on article 9(1)(c) and I direct release of that information.
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.
Julie O’Leary
On behalf of the Commissioner for Environmental Information