Decision
Mr F and Department of Agriculture, Food and Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-129103-T7K2X7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-129103-T7K2X7
Published on
1. This request relates to records about a specific review of the COFORD Forest Road Manual. According to an information note provided by the Department to the appellant, the COFORD Forest Road Manual is currently under review and the Department estimated that the work will be completed in quarter 4 of 2023.The COFORD Forest Road Manual is the definitive standard in terms of the construction of forest roads.The content of the manual forms the basis of licence conditions for new forest road construction. The current manual dates back to 2004.
2. On 29 July 2022, the appellant requested all records of the Department in relation to reviews, proposed reviews or amendments to the CORFORD Forest Road Manual, to include, but not restricted to; drafts, meetings to discuss reviews, proposed reviews, amendments etc., circulars amending and updating the manual (including related correspondence).
3. The Department responded to the appellant’s request on 25 August 2022. It relied on article 9(2)(c) of the AIE Regulations to refuse the request. The Department noted that it had regard to the provisions of article 10 of the Regulations. The decision stated that the COFORD Forest Road Manual was currently being reviewed but not yet completed.The Department estimated that this review would be completed in quarter 4 of 2023. The decision included a weighing of the public interest served by disclosure against the interest served by the refusal.The factors set out in favour of release of this information were making available to the public, where practical and allowed under the law, in a transparent manner, information affecting the environment.The factors noted in favour of withholding this information were to allow the document review to be fully completed before information on the review process is made available.The Department concluded that, on balance, the public interest in this case was best served by withholding this information.
4. The appellant sought an internal review on 25 August 2022.The appellant stated that he did not consider that the Department had provided a sufficiently strong argument under Article 10 (3) to justify withholding the information.He noted in his request that Article 9(2)(c) applies to each individual record, not a process, therefore he considered that the Department failed to apply Article 10 (4) and 10 (5).
5. The Department issued its internal review outcome on 22 September 2022. It concluded that no grounds had been found to reverse the original decision and affirmed refusal of the information requested on the basis of article 9(2)(c) of the AIE Regulations. It also stated that in addition, upon review, Article 9(2)(d) provided further ground for refusing the request. The Department confirmed that “in line with article 10(3), their consideration of the request had included the weighing of the public interest served by disclosure against the interest served by refusal”. The internal review decision went on to note that “the factors in favour of release/withholding of this information was to allow the document review and the associated process to be finalized before such information is made available”.
6. The appellant brought this appeal to this Office on 26 September 2022.
7. This appeal is concerned with whether the Department was justified in relying on article 9(2)(c) and 9(2)(d) of the AIE Regulations to refuse access to the information sought by the appellant.
8. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal, which I have now completed under article 12(5) of the Regulations.In so doing, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
What follows does not make findings on each and every argument advanced but all relevant points have been considered.
Analysis and Findings
9. Article 9(2)(c) of the AIE Regulations provides that a public authority “may refuse to make environmental information available where the request…concerns material in the course of completion, or unfinished documents or data”. Article 9(2)(d) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure. Article 10 however provides for certain limitations on the ability of a public authority to refuse to make environmental information available as follows:
“(3) The public authority shall consider each request on an individual basis and weigh the public interest served by the 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…9 shall authorise a public authority not to make available environmental information which, although held with information to which article…9 relates, may be separated from such information”.
10. The first question to be considered, therefore, is whether the exception contained in article 9(2)(c) can be relied on at all in the circumstances. Article 10(4) makes it clear that a restrictive approach to that question is necessary. The decision of the CJEU in Land Baden-Württenberg also makes it clear that “…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” and that “the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”. The CJEU also noted that the purpose of the exception concerning material in the course of completion or unfinished documents is “to meet the need of public authorities to have protected space in order to engage in reflection and to pursue internal discussions” (paragraph 69).
11. The issue in this case, however, is that the Department, has decided to refuse the appellant’s request on the basis that it is “not in the public interest to release this material as it relates to the review of a manual that is in the course of completion and as of yet unfinished”. The request in this case was not for a copy of the manual itself, and therefore the status of the manual is not the sole factor to be assessed when considering whether the grounds for refusal contained at article 9(2)(c) may be relied upon by the Department. It is the information requested which must be examined when assessing whether article 9(2)(c) applies, rather than the decision-making process to which the information relates. The question is whether the information requested “concerns material in the course of completion or unfinished documents or data” and not whether the decision-making process in respect of which the information has been generated is incomplete.
12. The Aarhus Guide supports the view that the expression “in the course of completion” contained in article 9(2)(c) relates to the process of preparation of the information or document. It does not relate to any decision-making process for the purpose of which the information at issue has been prepared. This aligns with the clear wording of article 9(2)(c) which refers in no uncertain terms to “materials in the course of completion” and “unfinished documents or data”, and not to any decision-making process.
13. The Department has provided 67 records to this Office, which it considers to be within the scope of the appellant’s request. It is clear from my review of the records that many of these documents are not incomplete or unfinished. For example, 18 documents are emails which have been received on foot of a public consultation request dated back to 2017.The invite for submissions commenced on 1 December 2016 and concluded on 27 January 2017, therefore, it cannot be said that these emails amount to incomplete or unfinished documents. While some other documents provided to this Office by the Department are marked draft or contain gaps to be completed, the Department has not identified the interest it considers would be undermined by release of those documents. Even if one were to assume that the interest it seeks to protect is the private thinking space around the review of the COFORD Forest Road Manual, the Department has not identified how that interest would be specifically and actually undermined by release of the relevant information.
14. Instead, the Department has relied on the fact that the review of the COFORD Forest Road Manual itself was ongoing at the time of the appellant’s request to apply article 9(2)(c) of the AIE Regulations in a blanket manner to all 67 records identified as being within the scope of the request.
15. I will address briefly the reliance of the Department on Article 9(2)(d) in its internal review decision.When relying on article 9(2)(d), the public authority should show that the information at issue is an “internal communication” such that it falls within the scope of the exception. It is then for the public authority to weigh the public interest served by disclosure against the public interest served by refusal.There is a requirement to consider each record individually and from my review of the records provided to this Office, it is not clear that all 67 of the relevant records come within the definition of internal communications. Some of the refused records are already in the public domain, while others contain correspondence with private individuals or other public authorities. Due to this, it appears that the Department have sought to apply this exemption in a blanket manner without examination of the individual records, as the internal review decision does not identify any specific documents that are considered to be internal communications.
16. Based on the above, I find that the manner in which the Department has processed this request is not in compliance with the AIE Regulations, and in particular with the obligation set out by the CJEU in Land Baden-Württenberg to identify a reasonably foreseeable risk that an identified interest would be undermined by release. Nor has the Department complied with the duty to give reasons which the High Court made clear exists in Right to Know v An Taoiseach. As Faherty J held at paragraph 106 of her judgment: “In light of the adjudicatory processes in which a decision-maker is required to engage pursuant to Articles 10(3) (4) and (5) and 11(4) of the AIE Regulations, 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”.
17. Recital 16 to the AIE Directive provides that “the right to information means that the disclosure of information should be the general rule and that public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. Article 10(4) of the AIE Regulations provides that grounds for refusal of a request must be interpreted on a restrictive basis, having regard to the public interest served by disclosure. It is this Office’s view therefore that the scheme of the AIE Regulations and the AIE Directive makes it clear that there is a presumption in favour of release of environmental information. In circumstances where the Department does not appear to have engaged with the information before seeking to rely on article 9(2)(c) and 9(2)(d) of the AIE Regulations, it is not clear to me how it could have reached the conclusion that release of the information would undermine the interests which these articles seek to protect, thereby rebutting the presumption in favour of disclosure. Neither is it clear how the Department could have weighed all relevant factors as required in order to determine whether the public interest in disclosure of the relevant information outweighed any interest served by its refusal. Therefore, I do not consider that the Department has complied with its obligations under articles 10(3) and 10(4) of the Regulations. In addition, it appears to me to be almost impossible for the Department to comply with its obligations under article 10(5) of the Regulations without considering the information itself.
18. As the Court of Appeal has made clear in Redmond, proceedings before this Office are “inquisitorial rather than adversarial in character” and “the extent of the inquiry is determined by the Commissioner, not by the parties” (paragraph 51). In addition, the High Court in the M50 case has confirmed that the Commissioner “enjoys a wide jurisdiction to conduct a de novo consideration of a request for access to environmental information”. It is therefore open to this Office to consider each of the 67 records to consider whether article 9(2)(c) of the AIE Regulations might provide grounds for refusal for any of them and direct release of those documents to which I do not consider the exemption to apply. Alternatively, I can remit the matter to the Department so that a fresh decision-making process can be undertaken.
19. There are a number of competing factors to consider when deciding the appropriate course of action in this case. The Department has failed to adequately consider the information in question and the applicability of the exemptions cited to each record identified. In circumstances where it has adopted a blanket approach to refusal, the Department cannot be said to have complied with the requirements, set out in articles 10(3) and 10(4), to consider the individual circumstances of the request, to interpret grounds for refusal restrictively and to weigh the public interest served by disclosure against the interest served by refusal. It has also failed to consider the question of partial disclosure in accordance with article 10(5) of the Regulations. Were this Office to use its inquisitorial functions to carry out a de novo review of the application of articles 9(2)(c) and 9(2)(d) to the information requested, this would effectively amount to carrying out these tasks, which the Department has failed to carry out, on its behalf. This risks allowing the Commissioner’s inquisitorial functions to be exploited in a manner contrary to the public interest, particularly in circumstances where the number of appeals being received by this Office is increasing dramatically.
20. In the particular circumstances of this case, a de novo review for the purposes of deciding whether the information should be withheld or released would require the review of 67 records by this Office, many of which do not appear to have been reviewed in the first instance by the Department. I also note that the records refer to the involvement of a significant number of other parties in the COFORD Forest Road Manual review process but none of those third parties appear to have been consulted or notified by the Department when processing the request. It would therefore be necessary to consider the interests of those third parties and whether consultation with those parties is necessary as part of the review, again in circumstances where this does not appear to have been considered in the first instance by the Department. I consider that those particular circumstances tip the balance in favour of remittal to the Department. While I understand that the appellant is likely to be disappointed given the delays he has experienced thus far, I do not consider it an efficient use of the resources of this Office to carry out functions which should have been carried out by the Department in the first instance. I also note that if this Office were to carry out a more in depth review, further information would be required from the Department, which would result in further delays before a decision could be reached in any event. I consider that the most appropriate course of action to take is to annul the Department’s decision in its entirety and direct it to undertake a fresh decision-making process in respect of the appellant’s request.The appellant will have a right to an internal review and a review by this Office if she is not satisfied with the Department’s decision. As part of the fresh decision-making process the Department should:
(i) Set out clearly, having regard to the information requested, the basis on which it considers any of the grounds for refusal to apply, bearing in mind the requirements of article 10(4) and the decision in Land Baden-Württenberg;
(ii) Set out clearly the factors it considers to weigh in favour of refusal and release and the basis on which it considers that the interest in refusal outweighs the public interest in disclosure, in accordance with the requirements of article 10(3);
(iii) Assess whether any information can be separated from the information to which it considers grounds for refusal apply, so that such information can be released to the appellant in accordance with the requirements of article 10(5);
(iv) Consider whether the interests of any third parties might be affected by disclosure and consult with those third parties as appropriate.
21. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the Department’s decision and direct the Department to undertake a fresh decision making process in respect of the appellant’s request.
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