Decision
Mr X and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-125909-S1C0T9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-125909-S1C0T9
Published on
Whether the Department was justified, under articles 8(a)(iii) and 9(1)(c) of the AIE Regulations, in refusing access to information sought by the appellant
5 March 2024
1. On 22 April 2022, the appellant wrote to the Department of Agriculture, Food and the Marine (the Department) requesting that the following information be “provided in an electronic format, as soon as is possible”. The appellant also noted that “certain information may fall to be withheld due to the environmental sensitivity of the data. However, [he] would direct [the Department] to Article 10(5) of the Regulations”.
(1) Records of bilateral discussions with National Parks & Wildlife Service on Curlew from 2020 to date.
(2) Details of requested analyses by FS-DAFM to NPWS of forest cover / perimeters and curlew buffers (any maps in GIS format).
(3) Results of any analysis sent to NPWS, including one on 8th November 2021.
2. On 23 May 2022, the appellant contacted the Department seeking an internal review on the basis of a deemed refusal.
3. The Internal Reviewer for the Department issued a decision on 22 June 2022, as follows:
“I have located records however as this information is commercially sensitive under Article 9(1)(c) I am refusing to grant access to these records. I have considered the provisions in Article 10 in coming to this decision. The release of such information could effect future applications. I also refuse to grant access to these records under Article 8(a)(iii) as the release of this information could adversely affect the protection of the environment to which that information relates. The applicant could contact the National Parks & Wildlife Service who may be in a position to share this information.”
4. The appellant brought an appeal to this Office on 4 July 2022.
5. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to submissions made by the appellant and the Department to this Office. I have also conducted a cursory examination of the records made available to this Office. 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’).
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Position of the Appellant
7. This Office received submissions from the appellant on 22 July 2022. He submits that the Internal Reviewer “has not adequately supported her decision”. The appellant also notes that a Schedule of Records has not been made available to him.
8. In relation to the Department’s use of article 9(1)(c) of the AIE Regulations, the appellant submits that “the two parties involved are not commercial entities” and that “no evidence of any legitimate economic interest has been provided”. The appellant argues that “the two parties concerned in the ‘bi-lateral’ discussions are both public authorities and the discussions concern the protection of the Curlew which is endangered as a breeding species in Ireland”. He submits that “the Department has given no basis as to how such discussions would have any commercial or industrial relevance let alone any adverse effect on the same”.
9. In relation to the Department’s use of article 8(a)(iii) of the AIE Regulations, the appellant submits that “the Department has provided no information as to the basis on which it considered Article 8(a)(iii) to apply other than citing the Article” and he queries “what adverse effect does the Department consider will result from the disclosure of the full body of information sought by [his] request”. The appellant also notes that the Internal Reviewer has “merely cited article 10 without providing any evidence that she has assessed the request in the full context of Article 10”.
Position of the Department
10. This Office received submissions from the Department on 4 August 2022, along with a copy of 175 individual records identified by the Department in response to the request. An associated Schedule of Records was not made available for the purposes of the Commissioner’s review. The Department submits that “No actual records were released to the applicant so the records were not redacted” and that “If, ultimately, the records are to be released, then there would have to be a redaction process gone through”.
11. The Department’s submissions uphold the position of the Internal Reviewer. It submits that the records concerned are “commercially sensitive under Article 9(1)(c)” and that “the release of such information could affect future applications, in that the exposure of locations of curlew sites and Departmental consideration of such sites, could lead to disruption on the ground as well as the risk of applications not being complete in all facets”.
12. The Department submits that the information is also being refused under article 8(a)(iii) of the AIE Regulations. It argues that “It is not within [the Department’s] ambit to give curlew data to a 3rd party, especially given that the nesting is sensitive and confidential”. The Department submits that “The Curlew is a protected species and information on their habitats is redacted when licence applications are published” and it argues that “This voluminous request, if granted, would open up this species to further potential disruption”.
13. Lastly, the Department recommends that the requester should contact the National Parks & Wildlife Service (NPWS) directly in relation to the information at issue. It submits that “As the NPWS generated the curlew nest site survey data, any requests for such data should be directed to NPWS as they are the authoritative source”.
14. This Office wrote to the Department on 13 July 2023, inviting it to provide further detail in a focused submission. This correspondence outlined that if the Department were relying on any part of article 8 or article 9 of the AIE Regulations, it should ensure that it adequately makes and addresses any relevant public interest arguments with reference to articles 10(3) and 10(4) of the AIE Regulations. No further submissions were received from the Department.
15. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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, the Commissioner will require the public authority to make available environmental information to the appellant.
16. This review is concerned with whether the Department is entitled to refuse access to information requested by the appellant on the basis of article 8(a)(iii) and article 9(1)(c) of the AIE Regulations.
17. The Department contends that all information identified in response to the appellant’s request may be refused under article 8(a)(iii) and article 9(1)(c) of the AIE Regulations.
18. Article 8(a)(iii) provides that:
“A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information… would adversely affect… the protection of the environment to which that information relates.”
19. Article 9(1)(c) provides 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.”
20. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
21. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “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”.
22. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, 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.”
23. It is clear from my review of the decision-making records in this appeal that the Department has not complied with its duties to give reasons in respect of this request. The Department did not give adequate consideration to the information at issue and to the requirements of article 10 of the AIE Regulations. I consider that the Department has applied the cited provisions of the AIE Regulations in a blanket manner, with no consideration of the individual relevant records. The Department made no attempt to address articles 10(3) and 10(4) and despite suggesting that a ‘redaction process’ would be required in respect of the records identified, it did not conduct any such exercise in line with article 10(5) of the AIE Regulations. It is therefore my view that is not appropriate for me to engage in further analysis with regard to the application of any relevant exemptions at this time. As article 12(5) of the AIE Regulations makes clear, the role of this Office is to review the public authority's internal review decision and to affirm, annul or vary it.
24. The manner in which this request was handled and the failure of the Department to provide any information or any adequate reasons to the appellant has meant that the appellant had no opportunity to make a meaningful request for internal review, and could not make a detailed appeal to this Office. This Office has a significant backlog of appeals and it will be impossible to clear the backlog if public authorities do not issue comprehensive and lawful first instance decisions that respect the fundamental rights of applicants. My options under the AIE Regulations are limited and it is not tenable for this Office to review in substance all environmental information where public authorities do not make lawful and sufficiently reasoned first instance decisions.
25. In light of the above, I cannot find that the Department’s reliance on articles 8(a)(iii) or 9(1)(c) of the AIE Regulations is justified and I will annul the internal review decision of the Department. The fact that the Department, by its own admission, has not reviewed the information concerned for partial disclosure and given that certain information may indeed fall to be withheld having proper regard to the provisions of the AIE Regulations, I do not believe that it is appropriate for this Office to direct the release of information at this time. I appreciate that remitting the case back to the Department causes further delay for the appellant. However, I do not believe that there is an appropriate alternative course of action in the circumstances of this case.
26. Should the Department wish to rely on article 8(a)(iii) in in carrying out a new internal review process, I would remind it that it must identify the environment to which the information at issue relates and explain how disclosure of the information at issue would adversely affect the “protection” of that environment. The risk of the protection of the environment being undermined must be reasonably foreseeable and not purely hypothetical.
27. Should the Department wish to rely on article 9(1)(c) in carrying out a new internal review process, I would remind it that it 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.
28. In addition, both article 8(a)(iii) and article 9(1)(c) 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. I would also draw the Department’s attention to the requirement to carry out a public interest balancing test in article 10(3), the need to interpret grounds for refusal restrictively in article 10(4) and the possibility of partial release in article 10(5).
29. 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 internal review decision of the Department. The result of this decision is that a new internal review process should be carried out by the Department under article 11 of the AIE Regulations.
30. 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