Decision
Mr A and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-120470-F3T1B5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-120470-F3T1B5
Published on
Whether or not the request has been dealt with in accordance with Articles 3(4) and 4(5) of the AIE Directive
1. On 10 January 2022 the appellant made the following request to the Department of Agriculture, Food and the Marine ("the Department") under the AIE Regulations:
“The iFORIS Forest Roads Database maintained by the Forest Service of DAFM as of 1-1-2022. (Attribute data to include Contract Number, Applicant Identifier, Location, Length (Harvest, Bellmouth, Upgrade), Status, Current Standing, Year of Approval, Grant Assisted, Date Form 2 Received, Date Form 2 Approved, Start Date, Completion Date, OS Map No.). I request that the information is provided as soon as possible in GIS format (ERSI Shapefiles and Attribute Data)”
2. On 25 January 2022, the Department issued its decision to release the information requested, but the information was not provided in the GIS format requested. It instead provided the information requested in PDF format.
3. On 26 January 2022 the appellant requested a review of the Department's decision. This was on the basis that he requested the information in GIS format not in tabular form in a PDF. The appellant stated: “The requested information in GIS format would provide the precise location and route of the road not just the Townland in which the road is located. This is important environmental information and it is not reasonable for DAFM to provide information in a tabulated PDF format when it was requested in GIS Format (ERSI Shapefiles and Attribute Data). DAFM maintains the information requested in the format requested so there is no reason it cannot be provided in that format.”
4. On 25 February 2022 the Department issued the outcome of the internal review to the appellant. The internal review noted it was varying its original decision. This was on the basis that its original decision “did not note that the applicant identifier was not provided. The Department does not release material that could identify any individual applicant.” The Department concluded that the original decision was to be upheld “as the material provided is the most comprehensive and up-to-date format available. The material sought in the original request is not available in GIS format.”
5. The appellant sought a review of the Department’s decision by my Office on 11 March 2022.
6. I have now completed my review under article 12(5) of the AIE 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:
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’).
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. My jurisdiction arises where a public authority has refused a request, in whole or in part. A request which has been “refused” includes a request that has not been dealt with in accordance with articles 3, 4 or 5 of the AIE Directive (see article 11(1) and (5)(c) of the AIE Regulations). Article 3(4) of the AIE Directive, implemented by article 7(3) of the AIE Regulations, requires information to be provided in the form or manner requested unless it is already available in another format or it is reasonable for the public authority to make it available in another format, in which case reasons shall be given for making it available in that format. Article 4(5) of the AIE Directive, implemented by articles 7(4)(c) and 11(4)(a) of the AIE Regulations, requires the public authority to provide reasons for a refusal to make information available.
9. In this case, the Department has decided to release parts of the information requested by the appellant, but to do so in a different format than that requested. In its internal review decision, the Department did not specify the basis upon which the information was made available in another form or manner.
10. In relation to the parts of the information not released to the appellant (specifically, the “applicant identifier”), the Department has not cited the grounds under the AIE Regulations it is relying on in respect of its refusal and has not provided reasons for the application of any such grounds.
11. The scope of my review in this case is confined to whether or not the request has been dealt with in accordance with Articles 3(4) and 4(5) of the AIE Directive.
12. The appellant’s submissions can broadly be summarised as follows:
a) The information was sought in GIS format (not in tabular form in a PDF).
b) The appellant states that the information requested is not already available to the public in another form or manner that is easily accessible. He says the requested information in GIS format would provide the precise geo-spacial location and route of the forest roads not just the townland in which the road is located. He says this is important environmental information and it is not reasonable for the Department to provide information in a tabulated PDF format.
c) The appellant says he had previously been provided by the Department with an iteration of the information requested, in the format requested (in July 2020). He says this proves that the information exists and can be provided in the format requested.
d) In his submissions to my Office, the appellant has not specifically commented on the Department’s refusal to provide him with the “application identifier”.
13. Following a request by my Office, the Department made one brief submission on 29 April 2022. In addition to what it said in its original decision and internal review, its submission to my Office can be summarised as follows:
14. In its internal review:
15. As the Department will be aware, public authorities have an obligation under the AIE Directive and the AIE Regulations to provide reasons to an applicant for the refusal of an AIE information request. Recital (16) of the AIE Directive provides that “… The reasons for a refusal should be provided to the applicant within the time limit laid down in this Directive.”
16. Article 3(4)(b) of the AIE Directive requires that, where information is provided in another format to that requested on the basis that it is reasonable to do so, reasons shall be given for making it available in that format. Article 4(5) of the AIE Directive provides that “A refusal to make available all or part of the information requested shall be notified to the applicant … The notification shall state the reasons for the refusal ...’
17. These provisions have been implemented in Ireland in articles 7(3) and (4)(c) and 11(4)(a) of the AIE Regulations which require a public authority to provide reasons for refusal both at decision and internal review stage.
18. Also of note is article 10 of the AIE regulations, which provides in paragraphs (3)-(5): “(3) The public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. (4) The grounds for refusal of a request for environmental information shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. (5) 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.”
19. The Department will be aware that case law has provided some helpful commentary in recent years regarding the statutory obligations concerning the duty to give reasons, as laid out above. In particular, the judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 372 notes that a public authority may refuse access to environmental information only where the requirements of the AIE Regulations have been substantively and procedurally adhered to (paragraph 80). In that case the Court held that if an AIE request is to be refused on the grounds permitted in the Directive, it must be justified via the processes set out in the Directive, as replicated in the AIE Regulations (paragraph 83).
20. In particular, the High Court stated that article 10(3), (4) and (5) mandates a public authority to:
21. The Court held that an absence of any indicator in the review decision that the exercise mandated by article 10(3), (4) and (5) had been carried out suggested that no balancing exercise had been carried out (paragraph 87). The Court held that the Department of An Taoiseach’s internal review decision did not comply with the requirements of the AIE Directive as it had not considered the public interest in favour of disclosure (paragraphs 88-89).
22. The Court, while accepting the position of the respondent that the applicant had not shown how the lack of reasoning in the Department’s internal review decision had inhibited it from seeking judicial review, went on to accept that the internal review decision did not comply with the reasons requirements of Article 4(5) of the AIE Directive and article 11(4) of the AIE Regulations. In doing so it stated 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.” The Court was not persuaded that it was sufficient for the applicant to be able to infer the reasons for the decision, as “such matters should not be left to inference where there is an express statutory requirement that reasons be included in the document putting the measure in force and where the reasons might be open to reasonable doubt” (paragraph 106). While I do not think there is a need to go into it in detail here, I might also add this finding of the Court in An Taoiseach is consistent with the CJEU’s case law on the EU Aarhus Regulation.
23. To my mind, the above illustrates that the obligations on the public authority are clearly set out in statute and expanded on in case law. It now falls to me to consider whether the Department has discharged its statutory duty in this regard in this appellant’s case.
24. Taking into account the AIE legislation and relevant case law, in this appeal to the OCEI, I am not satisfied that the Department has substantively and procedurally complied with the requirements of Articles 3 and 5 of the AIE Directive, as implemented by the AIE Regulations in articles 7(3) and (4), 11(4) and 10(3), (4) and (5) as laid out above. I have come to this conclusion based on the following:
25. In Right to Know v An Taoiseach the Court cited RPS v Kildare County Council [2016] IEHC 113 in relation to the purpose of a right to reasons. The recognition of a legal right to reasons, as a matter of natural justice, constitutional law, under the ECHR, and in EU law, reflects and serves a range of important policy objectives. In summary, reasons enable a person to know whether there are grounds to challenge the decision; enable the decision to be effectively reviewed when challenged; encourage and support better administrative decision-making; and act as a promoter of transparency and a deterrent to arbitrary administrative action or malpractice. For the reasons explained above, I am satisfied that the request has not been dealt with in accordance with Articles 3(4) and 4(5) of the Directive because the Department has:
a) failed to identify the basis upon which it provided information in another form or format and to give reasons for doing so;
b) failed to identify a ground under the AIE Regulations for refusing to provide the applicant identifier and to give reasons for doing so; and
c) if it relies on an exception in respect of its refusal to provide the applicant identifier, failed to carry out the balancing test required by article 10(3)-(5) of the AIE Regulations and to give reasons for its conclusion..
26. Based on the foregoing, I hereby annul the Department's decision on the appellant’s request and remit the matter for fresh consideration by the Department. I expect that this fresh decision-making progress shall culminate in a decision which complies with the requirements of the AIE Regulations and the AIE Directive.
27. 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.
Ger Deering
Commissioner for Environmental Information