Decision
Mr Ken Foxe and DAA Public Limited Company
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153314-C1S1K5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-153314-C1S1K5
Published on
Whether DAA was justified in withholding 7 records on the basis that article 9(1)(b) of the AIE Regulations applies, ii) whether DAA was justified in withholding 1 record on the basis that article 8(a)(ii) of the AIE Regulations applies
16 December 2024
1. On 16 August 2024, the appellant requested the following information from DAA:
“Under the AIE Regulations, I am seeking the following:
- a copy of any representations received by the daa with regard to proposals for ending business aviation flights at the airport in order to keep within its current passenger cap.
- a copy of the response which was issued in each case.
- a copy of any correspondence between the daa and the Department of Transport with regard to the above.”
2. DAA issued its original decision on 30 September 2024:
“I made a decision on your request on 30/09/2024. I identified 7 records which are relevant to your request. I have decided to refuse access to these records. Access to records identified in this review have been refused under the AIE Regulations pursuant to Articles 8(a)(ii) and 9(1)(b):
8. (a)(ii) the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information,
9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect (b) the course of justice (including criminal inquiries and disciplinary inquiries),
The 32m terminal cap at Dublin Airport (the “Terminal Cap”) is subject to an active Section 152 of the Planning & Development Act 2000 as amended. Consequently, it would not be appropriate for correspondence and documentation regarding the Terminal Cap and issues inextricably linked to this case, to be released while the issue remains in a statutory process.
Schedule of records
I have attached a schedule of records with this letter. This lists the records that I consider relevant to your request. It provides a brief description of each record and the decision I have made on each record. Where I have decided to refuse access to a record, it specifies the Article of the AIE Regulations under which this refusal has been made.”
3. The appellant requested an internal review on 30 September 2024. DAA issued its internal review on 29 October 2024.
“Result of the internal review of this decision
I was assigned to review your request and I made a decision on this review on 24/10/2024. I have examined the records relevant to this request. I affirm the decision of the original decision maker to refuse access to the information requested under Articles 8(a)(ii) and 9(1)(b) of the AIE Regulations.
Schedule of records
I have attached a schedule of records with this letter. This lists the records that I consider relevant to your request. It provides a brief description of each record and the decision I have made on each record. Where I have decided to refuse access to a record, it specifies the Article of the AIE Regulations under which this refusal has been made.
Public interest test
Furthermore, in accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of your request. Having weighed the public interest in the release of documents against the benefit to daa in relying on that exemption, I am of the view that the public interest lies in parties being in a position to prepare for and progress through legal proceedings and administrative processes which may become the subject of legal proceedings, without being required to provide their preparatory and/or related documents before those proceedings and processes are completed. I have therefore determined that the public interest would not be served by disclosing the information you request.”
4. The appellant appealed to my Office on 31 October 2024. He stated that he is unhappy with a number of aspects of the decision:
“the decision seems to be made on the basis that all/any records related to the passenger cap at Dublin Airport are exempt because they are the subject of a planning process and/or possible legal action. This seems to me to have been done in a class-based way without regard to the individual contents of the letter. It is also an untenable position given the extreme public importance of the process around the passenger cap and its impact in environmental terms, and in particular with regard to emissions into the environment.
- the decision is not adequately reasoned or explained and no harm has been described.
- the public interest test is cursory and has no regard to the emissions override, which should clearly have applied in the context of aircraft travel and its outsized impact in terms of emissions and climate change.
- an extension was sought in this request for unexplained reasons that do not seem justified in a case where the request relates to a small number of records are involved and it appears like the records were not assessed individually and were instead exempted in a class-based fashion.
- I would also ask that this request is expedited and not remitted back for a fresh decision, given the significant public interest factors involved here”
5. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal. In carrying out my review, I have had regard to the submissions made by the appellant and the DAA Public Limited Company. I have also examined the contents of the records at issue. 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.
7. In accordance with article 12(5) of the AIE Regulations, my role, on behalf of the Commissioner, 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, I will require the public authority to make environmental information available to the appellant.
8. In submission to this Office, DAA has set out a description of the records at issue:
Record 1: Email with letter attached
Record 2: Letter to DAA
Record 3: Email explaining deadlines
Record 4: Internal comms
Record 5: Letter from business
Record 6: Email with letter attached
Record 7: letter from DAA
9. DAA is seeking to rely on article 9(1)(b) to withhold the 7 records in full. DAA is also seeking to rely on article 8(a)(ii) to withhold Record 2. My review of this case is concerned with whether DAA is entitled to rely on article 9(1)(b) to withhold records 1-7, and whether it is entitled to rely on article 8(a)(ii) to withhold record 2.
Article 9(1)(b)
10. DAA has sought to refuse release of all records identified as relevant to the request and is relying on article 9(1)(b) of the AIE Regulations to do so. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries).
11. This provision seeks to transpose Article 4(2)(c) of the AIE Directive, which in turn is based on Article 4(4)(c) of the Aarhus Convention. Article 4(2)(c) of the AIE Directive provides that Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature.
12. Article 9(1)(b) must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal and article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure.
13. The wording of article 9(1)(b) of the AIE Regulations makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the public authority must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the course of justice (see C-619/19 Land Baden-Württemberg v DR). The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical.
14. DAA states that “Access to seven records has been refused under the AIE Regulations pursuant to Article 9(1)(b) … The 32m terminal cap at Dublin Airport (the “Terminal Cap”) is subject to an active Section 152 of the Planning & Development Act 2000 as amended. Consequently, it would not be appropriate for correspondence and documentation regarding the Terminal Cap and issues inextricably linked to this case, to be released while the issue remains in a statutory process.”
15. I am not satisfied that DAA has explained how the release of the records at issue could adversely affect the course of justice. DAA has not addressed the specifics of the information requested or explained in any meaningful way how the release of the 7 records would adversely affect the course of justice with regards the “active Section 152 of the Planning and Development Act 2000” which it says the passenger cap is subject to. Not all records whose subject matter relates to the passenger cap at Dublin Airport will be exempt from release under article 9(1)(b) purely by virtue of fact that there are ongoing statutory proceedings at play.
16. I must remind DAA that the fact that information may relate to ongoing legal or statutory proceedings does not, in and of itself, establish that its disclosure would adversely affect the course of justice; otherwise the AIE Regulations would provide for a class-based exemption for such information, which they do not.
17. DAA has not explained how the specific information sought is relevant to the proceedings identified. Furthermore, DAA has not explained in any detail that an adverse effect is reasonably foreseeable within the terms of the exemption.
18. Without this information it is not possible for me to find that the information sought is relevant to the proceedings, or to find that the course of justice would be adversely affected by the release of the requested information. When considering whether there would be an adverse effect if the records at issue were to be released, I would expect it to consider the specifics of the information contained within. This would include for example an assessment on whether submissions made by any party within the records, are positions that have been stated publically – as is often the case with lobby groups or others who make representations with regards proposals that are high profile in nature such as the Dublin Airport passenger cap.
19. DAA referred to the public interest balancing test as required by article 10(3) and 10(4) of the AIE Regulations, in its original decision. But the public interest balancing test it set out lacked specific detail in relation to the records at issue, and in any event it was premature as DAA has failed to conduct a detailed examination on whether article 9(1)(b) applies to the records in the first instance.
20. Finally, article 10(5) stipulates that 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. DAA does not seem to have given any consideration as to whether there contains within the records information which may be separated from information which article 9(1)(b) relates (in the event its application is justified).
Article 8(a)(ii)
21. DAA has sought to apply article 8(a)(ii) to Record 2. Article 8(a)(ii) provides:
“A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information— (a) would adversely affect— (ii) the interests of any person who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information.”
22. In order to correctly apply article 8(a)(ii) the public authority must, provide an explanation as to why it was satisfied that the person or persons was/were not legally obliged (and could not be legally obliged) to supply the information at issue. The public authority when applying article 8(a)(ii) must also demonstrate that there would be an adverse effect on the interests of the person who volunteered the information, if it is disclosed.
23. DAA has not explained what adverse effect on the interests of the person who volunteered the information would be. Moreover, there is a distinct lack of reasons in DAA’s application of article 8(a)(ii). The duty to give reasons, for the refusal of requests, arises not only by virtue of the AIE Regulations and Directive, is 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.
24. Article 8(a)(ii) must also be read alongside article 10 of the AIE Regulations. In particular, article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. The Department has attempted to weigh the public interest (in the original decision) in disclosing, versus the public interest in withholding, this information, albeit prematurely as for the reasons I have set out above, I do not consider it has satisfied the basis on which article 8(a)(ii) can be engaged in the first instance.
25. I would also remind DAA that it has an obligation to apply article 10(1). Article 10.(1) states that “notwithstanding articles 8 and 9 (1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment.” DAA does not seem to have considered whether this request relates to information on emissions into the environment. If it does, the regulations stipulate that the public authority is not entitled to rely on article 8(a)(ii) to withhold this information.
26. Finally, I note that DAA extended the time for the original decision to be issued. Article 7(2)(a) of the AIE Regulations stipulates that a decision must be provided to a request for environmental information within one month. Article 7(2)(b) states that “where a public authority is unable, because of the volume or complexity of the environmental information requested, to make a decision within one month from the date on which such request is received, it shall, as soon as possible and at the latest, before the expiry of that month— (i) give notice in writing to the applicant of the reasons why it is not possible to do so, and (ii) specify the date, not later than 2 months from the date on which the request was received, by which the response shall be made,”
27. I cannot see that DAA provided a justification for the extension (as is required by the AIE Regulations). In its letter to the appellant of 29 August 2024 it said: “due to the complexity of the request, it will not be possible to decide within the standard one-month timeframe”. DAA has not given an explanation as to why it considers this a complex request, and neither the original decision or internal review decision give any indication as to why this would be the case.
28. I acknowledge the appellant’s request that this decision should not be annulled and remitted, as in his opinion the public interest in the information sought is very high and therefore he would like the information to be released as quickly as possible. Unfortunately based on the specifics of the case, including the inadequate reasoning and the presence of third parties, the most appropriate course of action for me is to annul and remit the case for a fresh decision.
29. Having carried out a review under article 12(5) of the AIE Regulations, I annul DAA’s decision and I direct it to undertake a fresh internal review process in respect of the withheld information.
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