Decision
Mr X and Forestry Appeals Committee
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144739-W3Z9K6
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-144739-W3Z9K6
Published on
Whether the FAC was justified in refusing the request under articles 3(1), 8(a)(iv) and 9(1)(b) of the AIE Regulations
9 October 2024
1. On 13 October 2023, the appellant made a request to the FAC under the AIE Regulations for all requests for legal advice (to any party) made by the FAC in order to address matters raised in appeals. The appellant said he was not looking for details on the legal advice received, just the request for advice and any details provided.
2. On 10 November 2023, the FAC identified three records within the scope of the request. It refused the request, relying on article 8(a)(iv) of the AIE Regulations, on the basis that disclosure of the information would adversely affect the confidentiality of proceedings of a public authority, and in article 9(1)(b) of the AIE Regulations, on the basis that the information sought was legally privileged and disclosure would adversely affect the course of justice. The FAC determined that the public interest would not be served by disclosing the information requested. On 15 November 2023, the appellant sought an internal review of this decision.
3. On 8 December 2023, the FAC issued an internal review decision in which it affirmed the original decision, relying on the same exemptions. A schedule to the decision listed thirteen records within the scope of the request, providing dates where relevant. These were the three records in the original decision, with the attachments to these requests listed as separate records. Two records were marked as having been granted: the Forestry (Miscellaneous Provisions) Act 2020 (No. 15 ) and the Forestry Appeals Committee Regulations 2020 (S.I. No. 418 ). However, these were both already in the public domain being, respectively, primary and secondary legislation available through the electronic Irish Statute Book.
4. The appellant appealed to this Office on 19 December 2023.
5. In submissions to this Office, the FAC raised the additional ground to refuse release that the requested information was not environmental information within the meaning of article 3(1) of the AIE Regulations.
6. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the FAC. 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’);
• the judgments of the Superior Courts in Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), 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;
• the decisions of the Court of Justice of the European Union in C-279/12 Fish Legal and Shirley v Information Commissioner (Fish Legal); C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), C-316/01 Eva Glawischnig v Bundesminister für soziale Sicherheit und Generationen (Glawischnig), C-204/09 Flachglas Torgau GmbH v Federal Republic of Germany (Flachglas); C-60/15 Saint-Gobain Glass Deutschland GmbH v European Commission (Saint Gobain) and C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg).
7. What follows may not comment or make findings on each and every argument advanced but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, my role, 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.
9. The Commissioner’s powers apply only in respect of environmental information held by or for a public authority. Where a public authority argues at the outset that the requested information is not environmental information, the general practice of this Office is to limit the review to the preliminary matter of whether the information at issue is “environmental information”, such that it falls within the remit of the AIE Regulations.
10. In its internal review decision, the FAC refused to release the records on the grounds that they were subject to legal professional privilege. In submissions this Office, the FAC contended that the requested information was not environmental information within the meaning of the AIE Regulations. The submissions of the FAC also addressed, in the alternative, the case made by the FAC in its internal review decision, where it argued that the information should not be released as it was legally privileged.
11. Accordingly, the scope of this appeal concerns, as a preliminary matter, whether the FAC was justified in refusing access to the requested information on the basis that such records do not contain “environmental information” within the meaning of the definition in article 3(1) of the AIE Regulations. Thereafter, if the information is found to be environmental information, I will consider whether the FAC was justified in its application of the exemptions to refuse to release the information.
12. The scheme of the AIE Regulations, and of the AIE Directive, makes it clear that there is a presumption in favour of release of environmental information. Subject to that presumption, a public authority may refuse to release environmental information where an exemption under articles 8 or 9 applies, and the interest in maintaining that exemption outweighs the public interest in disclosure under article 10.
13. 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 records and the extent to which I can describe certain matters in my analysis is limited.
14. This approach is taken in all appeals before this Office, as the Commissioner’s role is to review the decision of a public authority under appeal, and to affirm, vary or annul the decision of a public authority. Where the decision is to annul or vary the decision of a public authority, we may direct a public authority to release environmental information. This Office does not itself release the records. All records are kept securely for the examination only of the Commissioner and the staff members assigned to the appeal and only for the duration of the appeal and the period allowed for any further statutory appeal against the decision of the Commissioner. In the event that a decision is appealed, the records may be retained until the conclusion of these proceedings.
15. The FAC had requested that this Office determine the appeal by reference to the fact that the requested records were subject to legal professional privilege, without viewing the records. It was determined that this was not appropriate in the context of this appeal.
16. Public authorities should be aware that legal professional privilege is not waived where disclosure is made to a third party for a specific, limited purpose, such as to a regulator or a prosecutor. InFyffes Plc v. DCC Plc [2005] IESC 3, [2005] 1 I.R. 59, Fennelly J. held at para. 29, p. 69, that there was no loss of privilege “when disclosure is made for a particular purpose and subject to express conditions as to confidentiality”. McCracken J. observed at para. 65, p. 84, that “there may be many situations in which it is desirable, or even mandatory, that privileged documents be disclosed to a third party for a limited purpose”. Disclosure under such circumstances does not amount to a waiver of the right of a party to assert a claim of legal privilege.
17. The provision of copies of records to this Office for the sole purpose of conduction a review under article 12 of the AIE Regulations does not affect a public authority’s entitlement to claim legal privilege on any record.
18. A review before the Commissioner is inquisitorial in nature and is conducted on a de novo basis. As such, the role of the Commissioner is not to assess the reasonableness of the position of the first-instance decision maker, but to exercise judgment afresh, including as to whether legal professional privilege applies to the requested information. This Office therefore was required to determine as part of this appeal whether and to what extent legal professional privilege applied to the requested information and could not properly do so without sight of the records.
19. Where a public authority correctly applies an exemption to the release of requested environmental information, the Commissioner must then conduct a public interest balancing test in accordance with article 10(3) and in the context of article 10(4). This is a mandatory step in making a decision under the AIE Regulations.
20. In M50 Skip Hire & Recycling Limited v Commissioner for Environmental Information [2020] IEHC 430 , the High Court (Heslin J.) commented at para. 48 that “the concept of public interest affords [the Commissioner] 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”. In carrying out this test, the Commissioner must have regard to the content of the requested information and consider whether the public interest in disclosure outweighs the interest in refusal. The public interest balancing test cannot be properly carried out without consideration of the content of the information sought.
21. For these reasons, it is stated for clarity and the avoidance of doubt that the disclosure of records to this Office to determine an appeal does not affect any claim a public authority may make in any other forum of legal professional privilege. It is necessary for the determination of an appeal for this Office to receive all records under the scope of a request so that an independent determination can be made of whether an exemption was correctly applied and to weigh the public interest served by disclosure against the interest served by refusal. Further, the AIE Regulations at article 12(6) provide the Commissioner may require a public authority to make available environmental information to the Commissioner, and where appropriate may require the public authority concerned or its chief officer to attend before the Commissioner for that purpose. The Commissioner may also take copies of any environmental information held by a public authority and retain it in his possession for a reasonable period.
22. Article 3(1) of the AIE Regulations provides, inter alia:
“… ‘environmental information’ means any information in written, visual, aural, electronic or any other material form on—
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) 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) as well as measures or activities designed to protect those elements, …”
23. 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. 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 also ESB 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.
24. In submissions to this Office, the FAC contended that the requested information was not environmental information within the meaning of the AIE Regulations as it comprised the FAC’s requests for legal advice regarding matters arising in appeals before it, and did not come within the definition of environmental information listed in paragraphs (a) to (f) of article 3(1). It argued that it was not information which could be considered to be environmental information and the appeal should be dismissed on this ground.
25. The appellant made submissions that the forestry licencing process was a measure within the meaning of article 3(1) of the AIE regulations that the operation of the FAC was administrative measure related to the licencing process and that decisions made by the FAC had the capacity to impact on the environment.
26. The appellant also argued that the FAC ought not be permitted to argue what he perceived as conflicting grounds for refusing a request. In this view, if a public authority argued that recordsdid not constitute environmental information, it ought not be permitted to rely on the exemptions which would apply if the records were held to be constitute environmental information. While I understand that submissions made in this manner may seem conflicting to an appellant, it is a normal practise that submissions in legal matters or administrative appeals may set out a preliminary ground that would decide a case, but consider further grounds in their favour if they were unsuccessful on the preliminary ground. This ought not to be equated with presenting conflicting arguments on the same legal point. I would however comment that the FAC did not contend that the information sought was not environmental information at either original decision or internal review stage. When arguments such as this are only raised at the stage of an appeal to this Office, although a public authority is entitled to do so, it causes avoidable delay to the investigation process. Public authorities should consider all relevant matters when making decisions on requests in the first instance.
In my view, paragraph (c) of the definition of environmental information provided for in the Regulations, which 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) as well as measures or activities designed to protect those elements, is the paragraph most relevant to this review.
27. Paragraph (c) of the definition of “environmental information” refers to 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) as well as measures and activities designed to protect those elements”. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. While it is not necessary to establish the probability of a relevant environmental impact, something more than a remote or theoretical possibility is required (Redmond, paragraph 63). Information may be “on” one measure or activity, more than one measure or activity or both a measure or activity which forms part of a broader measure (Henney, paragraph 42). In identifying the relevant measure or activity that the information is “on” one may consider the wider context and is not strictly limited to the precise measure with which the information is concerned, and it may be relevant to consider the purpose of the information (ESB, paragraph 43).
28. Although the scope of what constitutes a “measure” or “activity” for the purposes of category (c) of the definition is limited, it is nonetheless wide. The CJEU in Mecklenberg stated at paragraph 20 of its judgment that “the use in Article 2(a) of the Directive of the term ‘including’ indicates that ‘administrative measures’ is merely an example of the ‘activities or measures’ covered by the Directive”. It noted that “as the Advocate General pointed out in paragraph 15 of his Opinion, the Community legislature purposely avoided giving any definition of ‘information relating to the environment’ which could lead to the exclusion of any of the activities engaged in by public authorities, the term ‘measures’ serving merely to make it clear that the acts governed by the directive included all forms of administrative activity”. Barrett J remarked in RTÉ that “the European Court of Justice [in Mecklenberg] could not have taken a more expansive view of what comprises an administrative measure for the purposes of the 1990 directive” (paragraph 19).
29. The FAC, according to its website, provides an appeals service against decisions on forestry licence applications made by the Minister for Agriculture, Food and the Marine. The FAC was established in 2018 under section 14A of the Agriculture Appeals Act 2001 as amended by the Forestry Act 2014. Appeals can be made against decision on licenses for afforestation, felling, forest road works and aerial fertilisation. I consider that the determination of appeals on forestry licensing application is the relevant measure or activity in this appeal. In its legal submissions, the FAC commented that “the Appellant does not identify the basis up on which he submits that the forestry licencing process is an administrative measure. In that context, it can be noted that the definition identifies examples of measures as being “policies, legislation, plans, programmes, environmental agreements and activities…”. Notably, the list of example does not include consents.”. I do not agree with this submission as I consider that the work of the FAC in determining appeals on forestry licensing applications is clearly the type of administrative activity is envisaged by paragraph (c) of the definition on environmental information.
30. The determination of appeals on forestry licensing application has a clear effect on the environment, as whether or not the license is granted will determine whether the related forestry activity can take place. Accordingly, I find that the determination of appeals on forestry licences is an activity within the meaning of article 3(1)(c) of the AIE Regulations.
31. The next question to consider is whether the information requested by the appellant is information “on” that measure. 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 also ESB, 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 in Henney, 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 in ESB, 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).
32. In this case, the information sought is for all requests for legal advice made by the FAC to address matters raised in appeals. Where a request for legal advice is made in relation to a particular appeal, it will inform the process in a significant fashion and may be the determinative factor in whether the FAC allows or dismisses a particular appeal. Where the request for legal advice relates not to a single appeal but to general practice within the FAC, this will have an ongoing effect on the decision-making process of the FAC in relation to forestry license appeals. Requests for legal advice also highlight issues that the FAC considers to be legally complex in appeals, or procedural issues that may arise. I consider that the release of this information would enable the public to have a better understanding of the processes of the FAC and would therefore advance the purposes of the Aarhus Convention. Having reviewed the information relevant to this request, I do not consider that the information sought is too remote from the relevant measure or activity to qualify as environmental information. I am therefore satisfied that it is information “on” the determination of appeals on forestry licensing applications within the meaning of paragraph 3(1) of the AIE Regulations.
33. I am therefore satisfied that the information sought is environmental information within the meaning of the AIE Regulations.
34. The FAC argued that the relevant records were protected by legal professional privilege, and sought to exempt the records from release by relying on article 8(a)(iv) and article 9(1)(b) of the AIE Regulations.
35. Legal professional privilege is a right of a person to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice. It is a common law right with a constitutional foundation, as a dimension of the protection of the administration of justice afforded by Article 34 of the Constitution of Ireland, and encompasses both litigation privilege and legal advice privilege. The existence of legal professional privilege is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice.
36. The constitutional standing afforded to legal professional privilege has been confirmed in decisions such asMartin v. Legal Aid Board [2007] IEHC 76 in which Laffoy J. held that “legal professional privilege is a constitutionally protected dimension of the fair administration of justice, fair procedures and right of access to legal advice protected by Article 34.1, Article 38.1 and Article 40.3 of the Constitution”. She endorsed the position of Kelly J. inMiley v. Flood [2001] 2 I.R. 50, at p. 65, that it was “a fundamental condition on which the administration of justice as a whole rests”.
37. InSmurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 I.R. 469, the Supreme Court considered the distinction between advice and assistance. Finlay C.J. opined, at p. 478, that “the necessity to obtain legal advice would in broad terms appear to envisage the possibility of a legal challenge or query as to the correctness or effectiveness of some step which a person is contemplating”. He proceeded to find that “where it is established that a communication was made between a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such a lawyer legal advice, whether at the initiation of the client or the lawyer, that communication made on such an occasion should in general be privilege or exempt from disclosure, except with the consent of the client”.
38. However, this exemption did not apply to all communications between a client and their lawyer,
“Similar considerations do not … apply to communications made to a lawyer for the purpose of obtaining his legal assistance other than advice. There are many tasks carried out by a lawyer for his client and properly within the legal sphere, other than that of giving advice, which could not be said to contain any real relationship with the area of potential litigation. For such communications there does not appear to me to be any sufficient public interest or feature of the common good to be secured or protected which could justify an exemption from disclosure”.
39. Therefore, this Office must be satisfied that the relevant communications are in fact legal advice rather than legal assistance to fall within a claim of legal professional privilege.
40. InMcMahon v. Irish Aviation Authority [2016] IEHC 221 , the High Court (Barr J.) outlined the circumstances required for legal advice privilege to apply:
(a) there must be a communication between a client and a lawyer (including solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General);
(b) the communication must have been made in confidence;
(c) the communication must have been made during the course of a professional legal relationship; and
(d) the communication must have been made for the purposes of the giving or receiving of legal advice.
41. The records in this appeal each contain requests for legal advice from the FAC either on specific appeals, with documentation related to those appeals, or for legal advice on issues arising generally before the FAC; or responses to these queries from counsel. Having reviewed the records, I am satisfied that each of these records fall fully within the understanding of legal advice that is subject to legal advice privilege as outlined above.
42. The appellant argued in his submissions that legal professional privilege might be subject to advices but not to the accompanying emails. InMiley v. Flood [2001] 2 I.R. 50, Kelly J. referred to the principle that “a man must be able toconsult with his lawyer in confidence” (emphasis added). As the summary of circumstances inMcMahon v. Irish Aviation Authority [2016] IEHC 221 in which legal advice privilege applies indicates, it is acommunication between a client and a lawyer which is subject to privilege. Therefore, a request for legal advice, in and of itself, does have the protection of legal professional privilege, being communications between a client and its lawyer.
43. The appellant queried whether a public authority had an independent legal status and whether it was entitled to invoke legal privilege. The legal basis for each public authority varies. In the case of the FAC, it was established by the Minister for Agriculture, Food and the Marine under s. 14A of the Agriculture Appeals Act 2001, as inserted by s. 35 of the Forestry Act 2014. As a body established by statute, it has the authority to seek advice and to defend its decision-making process. I am satisfied that the FAC in entitled to claim legal privilege over appropriate records.
44. It is my view that protection for LPP falls most appropriately within the exception in article 9(1)(b) of the AIE Regulations. 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 would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries). Article 9(1)(b) seeks to implement Article 4(2)(c) of the AIE Directive, which is in turn based on Article 4(4)(c) of the Aarhus Convention. I note that the Aarhus Guide takes a narrow approach to construction of the relevant provision in the Aarhus Convention, interpreting “the course of justice” as referring to “active proceedings within the courts”. However, I also note that the Aarhus Guide, while a source of helpful guidance, is but a Guide, is not legally binding and is not determinative ( Right to Know CLG v Commissioner for Environmental Information IEHC 353, paragraph 20).
45. LPP is a right of a person to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice. It is a common law right with a constitutional foundation, as a dimension of the protection of the administration of justice afforded by Article 34 of the Irish Constitution. The existence of LPP is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice, such that it is “a fundamental condition on which the administration of justice as a whole rests” (see Martin v Legal Aid Board [ 2007 IEHC 76 ] and Miley v Flood [ 2001 IEHC 9 ]).
46. The FAC and the appellant agreed that article 9(1)(b) of the AIE Regulations applies to these records as legal professional privilege can be claimed over them. However, the appellant argued that the burden of proof lay with the FAC to demonstrate that an adverse effect would result from the release of the specific information requested.
47. The existence of legal professional privilege is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice, such that it is “a fundamental condition on which the administration of justice as a whole rests” (seeMartin v. Legal Aid Board [2007] IEHC 76). In light of this, I accept that the disclosure of information which would breach legal professional privilege would, as a result, adversely affect the course of justice, within the meaning of Article 9(1)(b) of the AIE Regulations.
48. Having examined the records in question, I accept the contention of the FAC that legal professional privilege attaches to the entirety of the information in each of the records the FAC has refused to release, for the following reasons:
a. It is clear on its face that the information records a communication between the FAC (a client) and the CSSO (a lawyer, effectively the FAC’s solicitor), regarding advices sanctioned by the Office of the Attorney General (a lawyer);
b. the FAC’s submission that the communication was made in confidence and has not been shared with any other party with the express intention of maintaining the privilege attaching to the advices;
c. the relationship between the FAC and both the Chief State Solicitor and the Attorney General in this context is a professional legal relationship (as identified by Barr J. in McMahon); and
d. It is clear on its face that the communication involved a request for and the receipt of legal advice.
49. I am satisfied that the disclosure of these records would adversely affect the course of justice, as it would undermine the general assurance that correspondence with one’s legal advisor will remain confidential. It would make it less likely in the future that FAC would seek advice, or make it less open in the communication seeking advice. I consider that this applies regardless of whether there are current or envisaged proceedings in place. Legal professional privilege does not require related proceedings to be in being. I therefore find that article 9(1)(b) applies to the records sought.
50. I will now proceed to consider whether the interest in withholding the relevant information (that being the protection of LPP) is outweighed by the public interest in its disclosure, having regard to the provisions of article 10(3) and 10(4) of the AIE Regulations.
51. In favour of release, I consider that there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive. I have also considered the public interest in information on the functioning of the forestry licensing system as a whole.
52. In favour of refusal, I note that the case law referred to above makes it clear that the protection of LPP is of fundamental importance to the administration of justice. The courts have emphasised the importance of the principle to facilitating free and frank communication with legal advisers (see, for example, Barr J’s summary of the rationale for protection in McMahon v Irish Aviation Authority [2016] IEHC 221 at paragraphs 7-11). I also consider that that the existence of legal professional privilege encourages public authorities to seek legal advice freely and frequently, and that there is a public interest in ensuring that public authorities seek legal advice about their obligations, particularly in relation to environmental matters.
53. Having viewed the records in question, I am satisfied that the public interest served by disclosure is not sufficient to outweigh the fundamental importance of the interest of preserving the FAC’s right to legal professional privilege in relation to the advice that it received. Naturally I cannot give details on the contents of those records. It is open to me in a different case to order release of material that is covered by LPP where the facts of that case and the contents of the records mean that the public interest would outweigh the interests of parties relying on LLP. But I do not think that the forestry appeals process in this case and the contents of the records meet that requirement.
54. Accordingly, I affirm the decision of FAC to refuse access to the information sought. In light of this finding, it is not necessary to address the application of article 8(a)(iv) of the AIE Regulations in this case.
55. I do note, however, that the matter of release or non-release of information where LPP and article 9(1)(b) may apply to a request for environmental information is case-specific and there may be situations where release of such information is warranted under the public interest balancing test. It is important that public authorities remember that since 2007 it is open to them to release legally privileged information, and to this Office to direct such release following receipt of an appeal, under the public interest balancing test.
56. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the FAC’s decision to withhold the records within the scope of the request but vary the basis of that decision. The FAC may refuse the records relying on the exemption within article 9(1)(b) of the AIE Regulations. The interest in refusal outweighs the public interest in disclosure.
57. 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