Decision
Mr. Ken Foxe and Department of the Taoiseach
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-116505-D3N5Q7
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-116505-D3N5Q7
Published on
Whether the Department was justified in withholding the remaining redacted text in the record concerned under articles 3(1), 8(a)(iv) and 9(2)(d) of the AIE Regulations
11 December 2024
1. On 29 June 2021, the appellant submitted a request to the Department of the Taoiseach (the Department) for “a copy of the business case, cost benefit analysis, submission, approval or other such memo or record relating to the approval of €3 million in funding for the Narrow Water Bridge”.
2. By way of background, the Narrow Water Bridge is a cross-border project which will link Northern Ireland and the Republic of Ireland with a new bridge, connecting Cornamucklagh near Omeath, Co. Louth with Narrow Water near Warrenpoint, Co. Down. A tender process for the construction of the Narrow Water Bridge was concluded by Louth County Council in 2024. The project is a longstanding commitment of the government, reflected in the Programme for Government and New Decade, New Approach agreement. It was announced in June 2024 that an allocation of €102 million + VAT is being made from the Shared Island Fund for the contract to deliver this project. (See: https://www.gov.ie/en/press-release/8e60d-government-announces-commencement-of-construction-of-the-narrow-water-bridge/ )
3. The Department provided its original decision to the appellant on 2 September 2021. It identified six (6) records which it considered to be within the scope of the request and refused access to these records, on the basis of article 8(a)(iv) of the AIE Regulations citing various sections of the Freedom of Information Act 2014, and also articles 8(b) and 9(2)(d) of the Regulations.
4. The appellant submitted a request for internal review on 2 September 2021 concerning one (1) withheld record only (Record 3). He submitted that the Freedom of Information Act is not relevant to this case as his request is made under the AIE Regulations which must be interpreted consistently with the AIE Directive. He argued that even if the Freedom of Information Act were relevant, none of the exemptions relied upon by the Department would apply. With regard to reliance on section 29 of the Freedom of Information Act, the appellant argued that the deliberative process is finished and noted that the Government has awarded funding to the Project. He submitted that this is in the public domain and no effort has been made to demonstrate how release of the records would be contrary to the public interest. With respect to section 33 of the Freedom of Information Act, the appellant noted that although the Department has asserted that release of the record could have an adverse effect on Northern Ireland, it has provided no explanation as to how this would be so. The appellant also argued that section 36 of the Freedom of Information Act has no relevance as the award of funding by the Irish Government to the Project is not commercially sensitive. In support of this argument, he noted that the Government issued a press release in relation to the award of such funding which is available at: https://www.irishtimes.com/news/politics/funding-of-3-%20million-allocated-for-new-north-south-bridge-1.4606599
5. The appellant also disputed that the communication is an “internal communication” for the purposes of article 9(2)(d) of the Regulations.
6. No response was received to the appellant’s internal review request within the statutory time period and the appellant submitted an appeal to this Office on 26 October 2021 on the basis of a deemed refusal by the Department. On 5 November 2021, this Office wrote to the Department requesting that it provide the appellant with a letter specifying its position in relation to his internal review request and outlining reasons for this position.
7. The Department issued its effective position to the appellant on 25 November 2021, affirming its decision to refuse access to the record in question. The Department’s decision relied on the grounds for refusal provided for in article 8(a)(iv) of the AIE Regulations. It submitted that the record includes information with regard to matters relating to the Narrow Water Bridge that were and are the subject of confidential discussions between the authorities here and in Northern Ireland as well as matters involving the meetings of the North-South Ministerial Council (NSMC). It argued that section 33(1)(c) of the Freedom of Information Act is relevant as it protects the confidentiality of records dealing with matters that relate to Northern Ireland. It also submitted that the record includes confidential information relating to design, tender, planning and construction aspects of the Project and to potential costs related to the Project. In this regard, it also relied on section 36(1)(b) of the Freedom of Information Act, arguing that these matters are commercially sensitive and noted that “it is assessed that their publication would prejudice the position of the relevant local authorities in executing the project”.
8. The Department also submitted that the record is an internal communication within the meaning of article 9(2)(d) of the Regulations as it is a note from a division in the Department conveying information to the Secretary General of the Department, the purpose of which was to convey information within the Department.
9. The Department submitted that the public interest is better served by not releasing the record. It noted that the factors in favour of release include the general aims of the AIE Directive, the public interest in openness and transparency with regard to the operations of public authorities and the fact that release of the record may shed light on the factors taken into account as part of the decision-making process. It argued that the factors against release include the interest in maintaining a close, positive and productive relationship with the administration in Northern Ireland on sensitive political, economic and social issues which it considers would be undermined if communications could not be conducted on the basis of mutual confidentiality. It also considered that it would be inimical to the public interest were a public authority to be deprived of the capacity to communicate on sensitive financial, commercial or Northern Ireland-related policy issues in confidence as this would prejudice the ability of a public authority to provide proper advice to the Government. It also submitted that “it is a responsibility of public authorities, in the public interest, to ensure that proper procedures are in place and observed in respect of commercially sensitive matters, including where those matters are likely to be the subject of public procurement processes” and “it must be assessed whether the process itself or the position of persons/bodies involved would be prejudiced if [commercially sensitive] matters were made public” as “such an outcome would not be in the public interest”.
10. The appellant submitted an appeal to this Office on 26 November 2021, as follows: “I wish this to proceed to review as I disagree with the decision, particularly the use of FOI to refuse a request that was not made under FOI.”
11. On 4 November 2022, the Investigator assigned to this case wrote to the Department seeking further information on its reliance on articles 8(a)(iv) and 9(2)(d) of the AIE Regulation. In submissions to this Office dated 16 December 2022, the Department advised that upon further consideration and in accordance with article 10(5) of the Regulations, that it now intended to part-grant the request for the record in question.
12. The Department’s submissions at this time regarding the remaining redactions may be summarised as follows:
(i) The Department outlined the current status of the Narrow Water Bridge project and submitted that the estimated cost of this significant infrastructure project remains highly commercially sensitive information. It argued that only cost information made publicly available to date was a figure of €3million provided from the Shared Island Fund in June 2021 to enable the project to be brought to tender stage; however, the tender process for the main construction works had not yet commenced. As such, the Department submitted that “any indication of the anticipated costs of the project would de facto become the baseline figure for bids, and risks substantially increasing it”. The Department submitted that section 36(1)(b) of the Freedom of Information Act applies to relevant redacted content, since the disclosure of the financial information in question “could very plausibly influence the competitive process to be initiated shortly by Louth County Council, leading to higher costs for the State”.
(ii) The Department submitted that the redacted content contains the confidentially expressed opinions of officials regarding the overall project. It submitted that, “[w]hereas the decision to go ahead with bringing the project to tender stage has now been made, the proceedings of the Government regarding the final decision (with whether to proceed with constructing the bridge) are ongoing, and these opinions are therefore being withheld under section 29(1)(a) of the Freedom of Information Act”.
(iii) The Department submitted that the redacted content of the record includes information with regard to matters involving the proceedings of the NSMC. It submitted that the North NSMC is a key institution of the Good Friday Agreement, and both the Irish Government and Northern Ireland Executive need to know that their discussions therein will be regarded as confidential. It argued that “the release of any information beyond that conveyed in the agreed joint communiques issued by the NSMC’s Joint Secretariat would break precedent, lead to a diminished level of trust between the two administrations and limit the efficacy of the NSMC as a vital forum for direct engagement and discussion between the Cabinet and their Northern counterparts”. The Department submitted that section 33(1)(c) of the Freedom of Information Act applies “as the release of this material would demonstrably adversely affect matters relating to Northern Ireland”.
(iv) The Department submitted that the redacted content of the released record is protected by the three (3) provisions of the Freedom of Information Act 2014, cited above, and therefore, in accordance with article 8(a)(iv) of the AIE Regulations, is subject to a mandatory refusal.
(v) The Department also maintained its position that the record is an internal communication within the meaning of article 9(2)(d) of the Regulations as it is an “internal briefing note, prepared purely for the purpose of informing the Secretary General of the state-of-play at that point in time of this project”.
(vi) The Department submitted that the public interest is better served by not releasing the remaining redacted text in the record concerned. It submitted that it was releasing the greater part of the record and, being mindful of need for increased public access to, and participation in, environmental decision-making, that it had interpreted the grounds for refusal in a restrictive way, only withholding specific information for clearly defined reasons. It argued that these reasons are “the need, in the public interest, to ensure a proper and fair process for the procurement of this project (both to protect the specific process and such processes more generally); the importance of public authorities, such as this Department, and the Government, being able to communicate internally important information and opinions that may have a significant bearing on an ongoing deliberative process (in this case, whether to ultimately proceed with a major cross-border project), particularly where the disclosure of same could very plausibly influence that process; and the necessity, in the national interest, of maintaining a key institution of the Good Friday Agreement and good relations with the Northern Ireland Executive and Northern Ireland government departments”.
13. On 21 December 2022, the Department released a redacted version of the record to the appellant. In light of the release of additional information, in line with this Office’s established procedures, the investigator asked the appellant to confirm whether he would like to continue with the current appeal. The appellant confirmed that he wished to proceed as, “[a]round a third of the record is still redacted”.
14. The Commissioner for Environmental Information has a power under article 12(9)(a) of the AIE Regulations to refer any question of law arising in an appeal to the High Court for determination. In November 2021, my predecessor used this power to refer a question to the High Court in another appeal (Coillte Teoranta and People Over Wind ), seeking the High Court’s guidance on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent they involved an interplay with the Freedom of Information Act 2014. As this appeal raised identical legal issues in relation to article 8(a)(iv) of the AIE Regulations, it was not possible to progress this case until the Court provided its legal guidance. As such, this appeal was placed on holding pending the receipt of the Court’s decision. The High Court issued its judgment on 28 April 2023 and it is available at [2023 IEHC 227 ]. This appeal was subsequently reactivated.
15. Following the High Court’s judgment and the reactivation of this appeal, this Office sought updated submissions from both the Department and the appellant.
16. On 29 May 2024, the investigator wrote to the appellant, with particular regard to article 9(2)(d) of the AIE Regulations and inviting submissions on the factors he considered relevant to public interest balancing test, including –
(a) whether the appellant required the information to assist in participation in a decision-making process on environmental matters, and to explain how this information will assist;
(b) whether the appellant considered that the information will improve access to justice in environmental matters, and to explain why this is the case; and
(c) whether the appellant considered any other public interest in release of the information.
17. The appellant submitted that there was no obligation on him, or anybody else, to explain why they seek access to records, or what they plan to do with them.
18. Notwithstanding his position, the appellant in his response dated 30 May 2024, submitted that there is a strong public interest in this information, and which he sought as part of his work as a freelance newspaper reporter and as part of research he is carrying out on this project and the impact it will have on the environment, as well as to understand the deliberative process behind it and its justification.
19. The appellant submitted that this is a major construction project that will have an enormous impact on the local environment, not just in terms of the actual physical construction but also in respect of traffic movement in the area. It is likely to bring significantly more vehicular traffic to the area in terms of tourism and industry, with a concomitant increase in congestion, road safety issues, and carbon emissions. He submitted that the project has already been the subject of controversy locally even before major construction works have begun, and included a news article entitled: Removal of fairy tree was approved by Louth County Council.
20. In submissions to this Office dated 1 August 2024, the Department advised that it had now released to the appellant an updated copy of the record at issue, with further content unredacted, in accordance with article 10(5) of the AIE Regulations. It explained that, “as the tendering process has now been completed, it is no longer necessary to redact certain passages on the grounds [it] had previously relied upon”. A copy of this record was provided to the Investigator, which could now be noted to contain four (4) distinct redacted excerpts. The Department also stated that it did not consider that the remaining redacted content constituted “environmental information” and hence was outside of scope of the AIE Regulations. Without prejudice to this position, the Department also maintained that it is entitled to refuse the information on the basis of the grounds for refusal contained at articles 8(a)(iv) and 9(2)(d) of the Regulations.
21. The Investigator wrote to the appellant on 2 August 2024 inviting further submissions with regard to the Department’s latest position. In response, the appellant submitted that the request was made under the AIE Regulations and, in his view, the Department is not entitled to rely on exemptions that are contained in the FOI Act. He also submitted that the entirety of the record is “environmental information”.
22. The Department provided final submissions to this Office on 29 August 2024 which clarified the precise information where it now sought to apply an additional ground to refuse release. It submitted that the information is not “environmental information” within the meaning of article 3(1) of the AIE Regulations in respect of the first two (2) redacted excerpts (Excerpt 1 and Excerpt 2). In respect of the final two (2) redacted excerpts (Excerpt 3 and Excerpt 4), the Department conceded that the information is “environmental information” within the meaning of the Regulations. The Department also confirmed its continued reliance on section 33(1)(c) of the Freedom of Information Act 2014, as the provision protecting the confidentiality of information as contemplated by article 8(a)(iv) and its continued reliance on article 9(2)(d) of the AIE Regulations, in respect of all of the information withheld.
23. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to all submissions made by the appellant and the Department. I have also examined the contents of the record 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);
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• the judgments of the Superior Courts in Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB) and Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ);
• the judgment of the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) which is referenced in the decisions in Redmond, ESB and RTÉ; and
• the decisions of the Court of Justice of the European Union (CJEU) in C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig) and C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg)
What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
24. During the course of this review, the Department sought to invoke article 3(1) of the AIE Regulations to justify refusal of the information at issue. Whilst it can be noted that the Department did indicate, in its original decision, its view that the information in the withheld record may not come within the definition of “environmental information”, no arguments or reasons were provided in the original decision to support this position and no such argument was referenced in the Department’s internal review outcome (effective position).
25. I would remind the Department that whether information is “environmental information” is one of the threshold issues to be considered when processing an AIE request. Further, the duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also 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 andBalz & Anor v An Bord Pleanála & Ors [2019] IESC 90.
26. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
27. The internal review in this case concerned one (1) record, which was originally withheld in full by the Department. This record is titled “Submission to Secretary General Martin Fraser regarding the Narrow Water Bridge project [24 February 2021]” and was described in the Department’s schedule of records as “an internal submission to the Secretary General of the Department from the British-Irish and Northern Ireland Affairs Unit”.
28. As outlined above, the Department relied on articles 8(a)(iv) and 9(2)(d) of the AIE Regulations as grounds for refusal. During the course of this appeal, the Department amended its position, on two occasions, in relation to the record concerned. On 21 December 2022, it released a redacted version of the record to the appellant. On 01 August 2024, it confirmed release of an updated copy of this redacted record, with additional content made available.
29. In addition, during the course of this review, the Department sought to rely on article 3(1) of the AIE Regulations in respect of certain remaining redacted content. A review by my Office is considered to be de novo. Accordingly, I consider it appropriate to also examine the applicability of article 3(1) in respect of this information.
30. This review is therefore concerned with –
(a) whether Excerpt 1 and Excerpt 2 in the record concerned is “environmental information” within the meaning of the AIE Regulations; and, if so,
(b) whether the Department is justified in its refusal to release all four (4) withheld excerpts, under articles 8(a)(iv) and 9(2)(d) of the AIE Regulations.
31. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the record and the extent to which I can describe certain matters in my analysis is limited.
32. The right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition as provided for in article 3(1) of the AIE Regulations. I consider that the information sought in the appellant’s request falls within this definition, in particular paragraph (c). Article 3(1)(c) of the AIE Regulations provides that “environmental information” means any information on measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) (i.e. the environment) as well as measures or activities designed to protect those elements.
33. According to national and EU case law on the definition of “environmental information”, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see alsoESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU.
34. It is the Department’s view that the relevant paragraph of the definition for present purposes is paragraph (c) of article 3(1) and it submits that, “the proposal to fund the building of the Narrow Water Bridge” constitutes a measure likely to have environmental effects thus satisfying the threshold test identified inRedmond ”. In submissions to this Office, the Department considers each relevant excerpt individually and relying onGlawischnig andHenney (as referenced in Redmond), it argues that Excerpt 1 and Excerpt 2 cannot be said to contain information that would further citizen participation in more effective environmental decision-making nor contribute to greater awareness of environmental matters.
35. In my view, the relevant measure/activity in this case is simply the Narrow Water Bridge project. This significant infrastructure project would have a clear effect on the environment, as noted by the appellant – not just in terms of the actual physical construction but also in respect of traffic movement in the area. Longstanding objectives of the project include to assist the social and economic development of the area; enhance the tourist and leisure potential of the region; promote interaction between communities, north and south of the border; and encourage pedestrian and cyclist activity. (See: https://www.dundalk.ie/news/government-announces-commencement-of-construction-of-the-narrow-water-bridge/ ) Accordingly, I find that the Narrow Water Bridge project is squarely a measure/activity within the meaning of article 3(1)(c) of the AIE Regulations.
36. The next question to consider is whether the information in the record is “on” that measure/activity.Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used and whether access to it advances the purposes of the Aarhus Convention and the AIE Directive (paragraph 43; see alsoESB , paragraph 42). Information that does not advance the purposes of the Aarhus Convention and the AIE Directive may not be “on” the relevant measure or activity (Redmond , paragraph 99). As the Court noted inHenney , the recitals of both the Aarhus Convention and the AIE Directive refer to the requirement that citizens have access to information to provide for a greater awareness of environmental matters, to enable more effective participation by the public in environmental decision-making and to facilitate the free exchange of views with the aim that all of this should lead, ultimately, to a better environment. Those recitals give an indication of how the very broad language of the text of the provisions of the Convention and the Directive may have to be assessed and provide a framework for determining the question of whether information is on a particular measure. Finally, as the High Court noted inESB , information that is integral to a measure or activity is information “on” it while information that is too remote from the relevant measure or activity does not qualify as environmental information (ESB, paragraphs 38, 40, 41 and 43).
37. In this case, the relevant excerpts form part of an internal briefing note for the Secretary General of the Department regarding the Narrow Water Bridge project. While I must be mindful not to disclose the content withheld, each excerpt can be said to contain commentary on matters relating to the project. I consider that the release of this information would enable the public to have a better understanding of the approach to the project and would therefore advance the purposes of the Aarhus Convention.
38. Having carefully reviewed Excerpt 1 and Excerpt 2, I do not consider that this information is too remote from the relevant measure/ activity to qualify as environmental information. Accordingly, I find that the information “on” the Narrow Water Bridge project within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. Additionally, I am satisfied that the record as a whole is environmental information. It is a briefing note containing key information for a high level official relating to the project, and therefore is sufficiently related to the relevant measure to qualify as environmental information within the meaning of article 3(1)(c). I will therefore go on to consider the exemptions arising in this review.
39. The Department’s current position concerning all four (4) withheld excerpts of the record is that it is entitled to refuse release of same on the basis of the grounds for refusal contained at articles 8(a)(iv) of the AIE Regulations. It submits that release of the redacted information would adversely impact the confidentiality of proceedings which it considers to be protected by section 33(1)(c) of the Freedom of Information Act 2014. The appellant, on the other hand, argues that the Freedom of Information Act is not relevant to his request as the request was made under the AIE Regulations which must be interpreted consistently with the AIE Directive.
40. It can be noted that the Department has also invoked article 9(2)(d) of the AIE Regulations in respect of the information withheld in respect of this AIE request. Both articles 8(a)(iv) and 9(2)(d) are based on the same need of the public authorities for a protected space in order to engage in reflection and to pursue internal discussions.
41. It is clear from the comments of the Court of Appeal inRedmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal. A review by this Office is considered to bede novo , which means that it is based on the circumstances and the law as they pertain at the time of the decision.
42. In the circumstances of this case, I consider it appropriate to consider article 9(2)(d) of the AIE Regulations first, before proceeding to consider the other exemption relied upon, if necessary.
43. 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. This provision transposes Article 4(1)(e) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention.
44. Article 9(2)(d) must be read alongside article 10 of the AIE Regulations, part of which transposes the second subparagraph of Article 4(2) of the AIE Directive. 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. Article 10(5) of the AIE Regulations provides 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.
45. 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 interest served by the refusal, as is required by the exception itself and articles 10(3) and (4) of the AIE Regulations.
46. The term “internal communications” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the decision of the CJEU inLand Baden-Württemberg provides some guidance on the internal communications exception. It notes that the term “communications”, should be given a separate meaning to the terms “material” or “document” (paragraph 40), and that it can be interpreted as relating to “information addressed by an author to someone, an addressee who or which may be an abstract entity such as ‘members’ of an administration or the ‘executive board’ of a legal person – or a specific person belonging to that entity, such as a member of staff or an official” (paragraph 37). It further notes that not all environmental information held by a public authority is necessarily “internal” and states that the “internal communications” exception:
“…must be interpreted as meaning that the term ‘internal communications’ covers all information which circulates within a public authority and which, on the date of the request for access, has not left that authority’s internal sphere – as the case may be, after being received by that authority, provided that it was not or should not have been made available to the public before it was so received” and
“…must be interpreted as meaning that the applicability of the exception to the right of access to environmental information provided for by it in respect of internal communications of a public authority is not limited in time. However, that exception can apply only for the period during which protection of the information sought is justified”.
47. As outlined above, the sole record at issue in this appeal is titled “Submission to Secretary General Martin Fraser regarding the Narrow Water Bridge project [24 February 2021]” and was described in the Department’s schedule of records as “an internal submission to the Secretary General of the Department from the British-Irish and Northern Ireland Affairs Unit”. Having examined the record, I note that it is not addressed to a particular entity or official; however, I am satisfied, by its title and description, that it was prepared as a briefing note or project update for the Secretary General of the Department, as at 24 February 2021. Also, while it can be noted that the majority of the record has now been released, there is no evidence to suggest that the withheld excerpts have left the internal sphere of the Department. Accordingly, I am satisfied that the information falls within the scope of the exception provided for at article 9(2)(d) of the AIE Regulations.
Public interest test
48. As noted above, article 9(2)(d) must be read alongside article 10 of the AIE Regulations. In considering the public interest served by disclosure, it is important to be mindful of the purpose of the AIE regime, as reflected in Recital 1 of the Preamble to the AIE Directive, which provides that “increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment.” The AIE regime thereby recognises a very strong public interest in openness and transparency in relation to environmental decision-making. Further, there is undoubtedly a public interest in the openness and transparency with regard to the State’s approach to a major cross-border project such as the Narrow Water Bridge.
49. The AIE regime also acknowledges that there may be exceptions to the general rule of disclosure of information, as noted in Recital 16 of the AIE Directive, which provides that “public authorities should be permitted to refuse a request for environmental information in specific and clearly defined cases”. One such case is in respect of internal communications of public authorities. The general public interest in such an exception is evident from the European Commission’s Explanatory Memorandum on the AIE Directive, which notes that “it should be acknowledged that public authorities should have the necessary space to think in private. To this end, public authorities will be entitled to refuse access if the request concerns material in the course of completion or internal communications. In each such case, the public interest served by the disclosure of such information should be taken into account” (see Proposal for a Directive of the European Parliament and of the Council on public access to environmental information /* COM/2000/0402 final - COD 2000/0169*/ ). This was referred to by the CJEU inLand Baden-Württemberg , which clearly stated that the exception is intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions (paragraph 44). However, the court also noted that given the broad nature of this exemption, the public interest balancing test must be tightly controlled in order not to render the Directive meaningless (at para 60).
50. It may be noted that the appellant took exception to this Office’s request for submission on the factors be considered relevant to the public interest balancing test, which in his view amounts to an “unwarranted intrusion into the journalistic research that [he] is engaged in”. I acknowledge that a requestor is not required to state an interest in making a request, as is clear from article 6(2) of the AIE Regulations. However, even so, the public interest in release of the particular information sought is a relevant factor in all appeals before me in assessing the public interest in favour of release and in balancing the interests under article 10(3) of the Regulations. It is always helpful to receive submissions from the parties on the public interest balancing test.
51. Article 10(3) of the AIE Regulations and Article 4 of the Directive make it clear that the public interest must be considered based on the individual circumstances of a case. A review by this office is considered de novo and therefore it is based on the circumstances of the case at the time of the review. This approach has been endorsed by the decision of the High Court inM50 Skip Hire Recycling Limited v the Commissioner for Environmental Information [2020 IEHC 430 ] In this judgment, Heslin J. outlines that “the concept of the public interest affords… the discretion to weigh many factors in the balance and to do so at a particular point in time and with reference to the particular facts of the case” (paragraph 48).
Factors in favour of disclosure
52. The appellant submits that there is a strong public interest in release of information concerning the Narrow Water Bridge project, such as would help to understand the impact it will have on the environment, as well as the deliberative process behind it and its justification.
53. The Department states that it is cognisant of the need for increased public access to, and participation in, environmental decision-making, and as such it has interpreted the grounds for refusal in a restrictive way. In line with the approach espoused byLand Baden-Württemberg the Department notes that it has released information to the appellant at intervals where is was no longer considered sensitive, taking account of the time that has passed and in the light of the content concerned.
Factors in favour of maintaining the exception
54. The Department submits that the remaining withheld excerpts contain information with regard to matters concerning the Narrow Water Bridge project that were and are the subject of confidential discussions between the authorities here and in Northern Ireland as well as matters involving the meetings of the NSMC. Accordingly, the Department refers to a strong public interest in maintaining the NSMC and good relations with the Northern Ireland Executive and Northern Ireland Civil Service.
55. The Department submits that the NSMC is a core institution of the Good Friday Agreement, and both the Government of Ireland and the Northern Ireland Executive need to know that their discussions therein (in Sectoral, Institutional and Plenary format) will be regarded as confidential. It submits that the release of any information, beyond that conveyed in the agreed joint communiqués published by the NSMC’s Joint Secretariat, would break precedent, lead to a diminished level of trust between the two administrations, and limit the efficacy of the NSMC, as a vital forum for direct engagement and discussion between Ministers, north and south. Ultimately, it argues, this would be harmful to relations between the two jurisdictions, to North-South cooperation more generally and to the principles underpinning the Good Friday Agreement.
Balance of the public interest
56. The public interest in disclosure of the withheld information is that of achieving full transparency concerning matters relating to a major infrastructure project, which by its nature have a significant impact on the surrounding environment. Whilst I accord significant weight to this, I find that I cannot reconcile the public interest in release with the potential impact that disclosure could have on the ability of the Department to deliver the executive functions of the Taoiseach and the Government; the maintenance of a key institution of the Good Friday Agreement (the NSMC); and, working relations with the Northern Ireland Executive and the Northern Ireland Civil Service.
57. Overall, despite being mindful of the requirement of the Directive and the AIE Regulations to interpret grounds for refusal restrictively, I consider that the public interest in protecting key north-south institutions and working relations, exceeds the public interest in the disclosure of the withheld excerpts. I do not think that information in the excerpts would add in any significant way to the ability of the requestor, or the public, to understand the nature or scope of the project. I am also satisfied that notwithstanding the time that has passed since this information was created, that it’s protection by the exemption remains justified, given the contents of the information sought, and that it relates to the sensitive and important area of North-South cooperation and the functioning of the North South Ministerial Council.
58. Based on the above, I have therefore concluded that in the circumstances of this case, the balance of public interest is weighted in favour of maintaining the exception. It follows therefore, that the Department was entitled to rely on article 9(2)(d) to withhold the remaining redacted text in the record concerned.
59. As I am satisfied that article 9(2)(d) applies in this case, it is not necessary for me to go on to consider the Department’s reliance on article 8(a)(iv) of the AIE Regulations.
60. Having carried out a review under article 12(5) of the AIE Regulations, I find that the Department’s decision to refuse access to the information at issue under article 9(2)(d) of the AIE Regulations was justified.
61. 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