Decision
Mr F and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-128262-B9G0Z2, OCE-138020-L5T6K8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-128262-B9G0Z2, OCE-138020-L5T6K8
Published on
Whether the AIE Regulations provide grounds for partial refusal of environmental information requested by the appellant
1. By way of context, and as outlined in the 2023 annual report detailing the work of this Office during 2022, there has been a sharp increase in the number of appeals to this office across the board, particularly in relation to forestry issues. The increase in appeals in relation to forestry issues has been challenging for the Department and other public authorities in this area. This Office acknowledges and welcomes the additional resources that the Department has allocated to process AIE requests and subsequent appeals, which were not in place at the time that the Department’s decisions in these requests issued.
2. The two appeals at issue here were each the subject of a decision by the Department on 12 September 2022 and 14 April 2023. Each relates to a request for environmental information relating to forestry licences. Both are as cases where information was part released but the licence applicant’s name and address details have been redacted. The Department noted that “there is no public interest in releasing such material, outside of the regulatory process”.
3. I am directed by the Commissioner for Environmental Information to carry out a review of this matter under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by both parties to each appeal. In addition, I have had regard to:
4. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each of these appeals is to review the Department’s internal review decisions and to affirm, annul or vary it.
5. The Department’s decision on these cases, part refused the information sought. Both of the decisions stated, in identical terms, that a public authority shall not make available environmental information in accordance with article 8 where disclosure of the information:
a. Would adversely affect:
(i)The confidentiality of the personal information relating to a person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law.
6. Article 8(a)(i) is the relevant article of the AIE Regulations providing for the non-disclosure of personal information in certain circumstances. For completeness, the full text of this provision, which was repeated in the Department’s decisions is:
“8. A Public Authority shall not make available environmental information in accordance with article 7, where disclosure of the information – (a) would adversely affect – (i) 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”.
7. When relying on article 8(a)(i) of the AIE Regulations a public authority must show the information at issue is personal information relating to a natural person, who has not consented to its disclosure; that the personal information has an element of confidentiality, that 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.
8. There is a notable absence of reasons for the partial refusal of records. It is not sufficient to quote the regulation without providing an explanation. The duty to give reasons, which arises not only by virtue of the AIE Regulations and Directive, is recognised generally as a core principal of administrative law and a fundamental element of constitutional justice (see, for example Meadows v Minister for Justice [2010] IESC and Balz and Anor v An Bord Pleanála &Ors [2019] IES 90). Both of these judgements, 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 the refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed.
9. It is unacceptable that the Department did not provide even a rudimentary statement of reasons in either of the almost-identical decisions that issued for these requests. This is contrary to both the letter and the spirit of the AIE Regulations, by which the Department is bound.
10. Having examined the records, I am satisfied that the information which has been redacted is “environmental information” within the meaning of article 3(1) of the Regulations. The decision to grant afforestation licences or any subsequent notices arising from the granting of the licence such as a planting notice, notice of substantial commencement and notice of completion of planting is a measure of activity which is likely to affect the environment within the meaning of paragraph (c) of the definition as there is real and substantial possibility that it will affect the environment in line with the test set out by the Court of Appeal in Redmond (see paragraph 63). The identity and address of individuals making submissions to the Department in respect of that decision is information “on” the measure, as access to such information would make the public better informed about the decision making process as well as appeals to the Department.
11. The information redacted from the records at issue in these cases are the names and address details of the applicants for forestry licences. An applicant’s name, Townland and County is available on a publicly displayed site notice as part of the procedure when applying for a forestry licence. As this information has previously been in the public domain in the context of the forestry licencing process, it does not fall into the realm of confidential information.
12. The Department has not demonstrated that the confidentiality of the information redacted is protected by law, nor has it shown that release would have an adverse impact on the confidentiality of that information such that the interest in release outweighs the public interest in disclosure. The Department has not established that the redactions were carried out in accordance with the requirements of the AIE Regulations.
13. As set out above, the Department cited the public interest in withholding the redacted information. The Department should note that the public interest balancing test does not fall to be carried out unless an exception has been engaged. In this case, the withheld information does not come within the parameters of article 8(a)(i) of the AIE Regulations. Further, the Department has not cited any further provision that would justify its redaction from the released information. On this basis, there is no requirement to consider where the balance lies with regard to the public interest.
14. 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 decisions of Department of Agriculture Food and Marine to part refuse the release of records requested. I direct the Department to release the redacted name, Townland and County from the site notice to the appellant.
15. 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 Gallagher, on behalf of the Commissioner for Environmental Information