Decision
Ms W and Department of Agriculture, Food & the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-121843-S7J2W0
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-121843-S7J2W0
Published on
Whether the Department were justified in refusing the information sought
14 May 2024
1. On 8 February 2022 the appellant submitted a request to the Department seeking:
(1) a list of all the FLO numbers and accompanying names (excluding private individuals) and
(2) a list of all FO numbers and accompanying names (excluding private individuals) who have applied for grant aided forestry licences in County Leitrim under the Forestry Programme 2014-2020.
2. I note that at this early stage the appellant specifically stated that she did not require information regarding private individuals.
3. On 22 February 2022 the Department wrote to the appellant setting out its decision to refuse the request. The Department stated that FO & FLO numbers are internal business ids and are not made available to the public while also citing Article 8(a)(i) of the AIE Regulations, which states:
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.
The Department also noted that, “the confidentiality of the records in question is otherwise protected by law under Section 37(1) of the Freedom of Information Act 2014. This provides that:
37. (1) Subject to this section, a head shall refuse to grant an FOI request if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual)”.
4. On 7 March 2022 the appellant wrote to the Department seeking an Internal Review. In her appeal the appellant queried the validity of the reliance of the Department on Article 8(a)(i) as in her opinion this Article refers to a natural person as opposed to a legal person “which may be a private or public organisation”. The appellant again clarified that her request relates to legal persons only and not to natural persons.
5. The Department issued its Internal Review Decision letter to the appellant on the 06 April 2022 confirming its decision to refuse the request as the information requested is stored under an internal business identifier which is not released to the public while also stating, “applicant names regardless of their status as legal entities are not disclosed publicly, apart from the information already available in the Forestry Licence Viewer”. The internal review decision did not make reference to any provisions of the AIE Regulations that allow for a public authority to refuse to disclose information.
6. On 12 April 2022, the appellant submitted an appeal to this Office.
7. On the 25 May 2022 the Department submitted a letter to this Office again outlining its position that the requested information, in the form of FO/FLO numbers, “is an internal business identifier that is not released to the public. In addition to this, applicant names regardless of their status as legal entities are not disclosed publicly, apart from the information already available in the Forestry Licence Viewer”.
8. In its submission of the 25 May 2022 the Department also stated that, “the voluminous nature of the request, should it be granted, would seriously disrupt the workings of Forestry Division, necessitating an even greater diversion of resources than already are devoted to AIE requests”.
9. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In so doing, I have had regard to the submissions made by the appellant and Department. In addition, I have had regard to:
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. 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.
11. As the Department has indicated its reliance on Article 8(a)(i) my decision in this case is therefore confined to whether the Council was justified, under Article 8(a)(i) of the Regulations, in refusing access to the information requested by the appellant.
12. For clarity, it may be beneficial to define the meaning of the acronyms FLO & FO as utilised by both the appellant and the Department in their correspondence. From the Departments website, it states that a FO number (or Forest Owner Number) “is issued by the Department of Agriculture, Food and the Marine to a land owner who has applied to the Department for approval to afforest land and/or has applied under a forestry related Department scheme. A FLO number (or Felling Licence Applicant Number) is a unique identifier in the Felling Licence database given to Felling Licence applicants”.
13. Article 8(a)(i) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect 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. This provision seeks to transpose Article 4(2)(f) of the AIE Directive, which in turn is based on Article 4(4)(f) of the Aarhus Convention.
14. In this case, the Department seems to have merely referred to article 8(a)(i) in seeking to refuse access in full to the records at issue. The argument presented by the Department that the requested FO/FLO numbers are “internal identifiers” which are “not made available to the public” does not explain how article 8(a)(i) is relevant.
15. The Department has not set out how it considers that the FO and FLO numbers come within the definition of “personal information relating to a natural person”, in particular in circumstances where the appellant specified in her internal request that she did not require FO or FLO numbers relating to private individuals. As correctly noted by the appellant in her request for internal review, article 8(a)(i) specifically refers to natural persons, unlike other provisions of the directive. Given that the Department has not set out how the information sought comes within the definition of personal information, I cannot find that refusal on the basis of article 8(a)(i) is justified.
16. While the Department has failed to establish even a prima facie application of article 8(a)(i) to this request, I will also note that there is no evidence before me to suggest that the Department has carried out any examination of the relevant records to determine if the particular information contained therein can be separated into `non-personal and personal` datasets to identify any personal information which has the quality of confidence required to engage Article 8(a)(i) of the AIE Regulations but also to aid the release of the non-personal element of this information as sought by the appellant in her original request. The Department also provided no explanation as to where the confidentiality of any such information is provided by law, nor did it identify any law upon which it was relying. Furthermore, the Department has made no attempt to demonstrate a clear link between disclosure and any adverse effect.
17. It seems to me that the Department has adopted a blanket approach to the refusal of the records at issue by claiming that article 8(a)(i) of the AIE Regulations applied to all of the records without conducting a record by record examination or engaging in any meaningful way with the provisions of the AIE Regulations. While the Department has a clear duty to protect the personal information of the citizens it engages with, it is clear that the appellant has, in her original request, specifically asked for non-personal information It may be the case that article 8(a)(i) is applicable in respect of certain records, or parts thereof, subject to Article 10. However, I am not satisfied that the Department has undertaken any substantial consideration of the content of the individual records, as is required, before refusing access to environmental information under the AIE Regulations.
18. While the Department has not specifically utilised Article 9(2)(a) of the Regulations which deals with discretionary grounds for refusal of information, based on the volume or range of information sought, I note that the Department has in its letter of 25 May 2022 to this Office, indicated that the, “voluminous nature of the request, should it be granted, would seriously disrupt the workings of Forestry Division, necessitating an even greater diversion of resources than already are devoted to AIE requests”. It is clear that the AIE Regulations provide for the processing of requests of a certain level of volume by providing for the extension of time for responding to a request in article 7(2)(b) and if this was of concern to the Department efforts should have been made to engage with the appellant to refine her request or to ask for an extended time period in order for the Department to process the request. The submissions made by the Department were not sufficient to establish that article 9(2)(a) applies to this request.
19. Having considered the decision-making records and the submissions of the parties in this appeal, I will annul the decision of the Department for the reasons set out above. However, I am not minded to direct release of the information sought at this juncture. The Department have not provided this Office with a copy of the information sought. In order to consider release of the information, I would be required to review the relevant information, and would need to seek further submissions from the Department as to whether it wishes to rely on article 9(2)(a) in respect of this respect. As well as this, the information concerns one or more third parties and in order to direct release of the information sought, it is likely that I would have to consult with each of the third parties involved. As per our procedures manual at paragraph 18.1, “the Commissioner takes the view that procedural fairness requires that a third party be notified of an appeal and be given an opportunity to make submissions where the interests of the third party would be affected by any proposed disclosure of the environmental information under review.”. While it is not evident to me at this stage that the interests of those third parties would be materially affected, the Department being the subject matter experts in forestry matters are better placed to assess this issue.
20. Given the above, I am satisfied that the AIE Regime is best served by annulling the decision of the Department and thereby requiring the Department to provide the appellant with a new internal review decision. It would take considerable time for this Office to obtain a copy of the requested information, seek further submissions from the Department and potentially consult with relevant third parties. This would result in a further delay to the requestor receiving information where appropriate. For these reasons, I will instead annul the internal review decision of the Department. The Department should therefore provide the appellant with a new internal review decision.
21. Having carried out a review under article 12(5) of the AIE Regulations, I find that the refusal of the information sought was not justified by the reasons given and I annul the internal review decision of the Department. The Department should provide the appellant with a new internal review decision.
22. 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