From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-116904-Y3L3S9
Published on
Whether the Department was justified in refusing access to four records relating to Food Vision 2030 on the basis that they are not environmental information or under articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations.
26 August 2025
1. On 10 August 2021, the appellant submitted a request to the Department seeking access to information relating to “the recently launched Food Vision 2030”, as follows:
• Copies of the cabinet minutes recording the Government’s consideration of Food Vision 2030
• Copies of all Government decisions in relation to Food Vision 2030
• Copies of any other records of the Government relating to Food Vision 2030
2. On 8 September 2021, the Department issued its decision. The Department refused access to four records it had identified as relevant to the appellant’s request on the basis that the records were not “environmental information” within the definition provided for under the AIE Regulations and, if they were, articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations applied. The Department noted that the Agri-Food Strategy (Food Vision 2030) is available on its website.
3. Also on 8 September 2021, the appellant sought an internal review of the Department’s decision.
4. As the Department failed to issue an internal review within the statutory timeframe, the appellant appealed to this Office. In accordance with this Office’s procedures, the Department was requested to advise the appellant of its effective position (internal review decision). It did so on 24 November 2021, affirming its original decision.
5. On 6 December 2021, the appellant informed this Office that he was not satisfied with the Department’s internal review decision, indicating that he wished his appeal to proceed.
6. This appeal was placed on hold pending the receipt of guidance from the Court of Justice of the European Union (the CJEU) in respect of a preliminary reference made by the High Court in the separate matter of Right to Know CLG v An Taoiseach [2021] IEHC 233 (High Court Reference: 2018 942 JR ). Following the relevant judgment of the CJEU in case C-84/22 , this case was reactivated. Subsequently the judgment in the relevant High Court proceedings, in which the reference was made, was delivered. Both the appellant and the Department were invited to make submissions in light of those judgments.
7. During the course of this review both parties were provided with a draft decision and given an opportunity to comment. I have now completed my review under article 12(5) of the AIE Regulations. In doing so, I have had regard to the correspondence between the Department and the appellant as outlined above and to correspondence between this Office and both the Department and the appellant on the matter. I have also examined the information at issue. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide)
8. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
9. In accordance with article 12(5) of the AIE Regulations, my role 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 available environmental information to the appellant.
10. As noted above, the Department identified four records relevant to the appellant’s request, copies of which it provided to this Office:
(i) Record 1: Memorandum for Government – Agri-Food Strategy to 2030;
(ii) Record 2: ePink – Agri-Food Strategy to 2030;
(iii) Record 3: Government Decision – Agri-Food Strategy to 2030; and
(iv) Record 4: Extract from Minutes of Government Meeting of 21 July 2021.
11. Having examined Record 3 (Government Decision) and Record 4 (meeting minute extract), I note that Record 3 sets out the decision regarding the Agri-Food Strategy 2030 and Record 4 records that decision. The substantive content of Records 3 and 4 is identical, insofar as it contains a note of the Government’s decision. While there are some differences in the administrative text accompanying that note (for example, in Record 3 the administrative headings appear in Irish and it includes a list of the Ministers’ Offices to whom a copy of the record was sent), I am satisfied that the differences will not have a material impact on my decision in respect of them.
12. The scope of this review is concerned with whether the Department was justified in refusing access to the four records identified on the basis that they are not environmental information or under articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations.
13. Article 5 of the AIE Regulations and Article 7 of the AIE Directive place duties on public authorities to actively disseminate environmental information. It is not within my powers under article 12 of the AIE Regulations to examine the implementation of those provisions by public authorities. However, those duties may be relevant considerations in interpreting the AIE Regulations and performing my functions. Furthermore, in every case, regard should be had to 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.”
14. In the first instance, the Department is refusing access to each of the four records on the basis that they do not come within the scope of the definition of “environmental information” under the AIE Regulations (discussed further in the “Definition of Environmental Information” section below). Notwithstanding this view, the Department indicated that if the records were considered to be “environmental information” they were being refused under articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations.
15. In its original and internal review decisions, the Department included the below comments listed regarding its reliance on articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations. The Department also stated that it “considered the records in scope of the request in light of the overarching requirements of Article 28.4.3 of the Constitution, which concerns the confidentiality of discussions at meetings of the Government and requires that, save where the High Court may find otherwise in defined circumstances, the confidentiality of discussions at Government meetings shall be respected in all circumstances.”
• “In reaching my decision in relation to the aspects of the records concerning Cabinet discussions, I am aware of and take into account the previous relevant judgments of the High Court. I am also aware that matters arising for a more recent judgment of the High Court in a relevant case are being referred to the Court of Justice of the European Union for its consideration in a Preliminary Reference and remain undecided as yet.”
• Record 1 – “The Memorandum for Government is exempt from release under the provisions of Regulation 8(a)(iv) which is a mandatory ground for refusal subject to Regulation 10 of the Regulations, as its release would adversely affect the confidentiality of proceedings of a public authority, where such confidentiality is otherwise protected in law, which is the case for this record as it is exempt from release under 28(1)(a) of the Freedom of Information Act 2014, being a record submitted to the Government by a Minister and created for that purpose which is under five years old. As the Memorandum for Government contains details of Cabinet discussions it is exempt under Regulation 8(b) of the AIE Regulations which provides that a public authority shall not make available environmental information to the extent that it would involve the disclosure of discussions at one or more meetings of the Government. It is also exempt under Regulation 9(2)(d) of the AIE Regulations which provides a discretionary ground for refusal of information where it concerns internal communications of public authorities, taking into account the public interest served by disclosure. I consider the Memorandum for Government and the Cabinet discussions contained in it to be internal communications of public authorities and that its release depends on the outcome of the public interest test required by this article. This ground mandates a refusal under the AIE Regulations subject to Regulation 10.”
• Record 2 – “This record is exempt from release under the provisions of Regulation 8(a)(iv) which is a mandatory ground for refusal subject to article 10 of the Regulations, as its release would adversely affect the confidentiality of proceedings of a public authority, where such confidentiality is otherwise protected in law, which is the case for this record as it is exempt from release under 28(2)(a) of the Freedom of Information Act 2014, as a record which contains information that reveals, or from which may be inferred, a statement made at a meeting of the Government. As the ePink also contains details of discussions at a Cabinet meeting it is exempt under Regulation 8(b) of the AIE Regulations, which provides that a public body shall not make available environmental information to the extent that it would involve the disclosure of discussions at one or meetings of the Government. It is also exempt under Regulation 9(2)(d) of the AIE Regulations which provides a discretionary ground for refusal of information where it concerns internal communications of public authorities, taking into account the public interest served by disclosure. I consider the ePink from the Government meeting to be internal communications of public authorities and its release depends on the outcome of the public interest test required by this Regulation. This ground also mandates a refusal under the AIE Regulations, subject to Regulation 10.”
• Records 3 and 4 – “The Government decision and the extract from the Minutes of the Government meeting are exempt under the provisions of Regulation 8(a)(iv), which is a mandatory ground for refusal, subject to Regulation 10 of the Regulations, as their release would adversely affect the confidentiality of proceedings of a public authority, where such confidentiality is otherwise protected in law. This is the case in respect of these two records as they are exempt from release under section 28(1)(b) of the Freedom of Information Act 2014 given that they are records of Government, less than five years old, other than records by which decisions of the Government are published by or on behalf of the Government. As the Government decision and the extract from the Minutes of the Government meeting contain details of Cabinet discussions they are exempt under Regulation 8(b) of the AIE Regulations, which provides that a public authority shall not make available environmental information to the extent that it would involve the disclosure of discussions at one or more meetings of the Government. They are also exempt under Regulation 9(2)(d) of the AIE Regulations which provides a discretionary ground for refusal of information where it concerns internal communications of public authorities, taking into account the public interest served by disclosure. I consider that a Government decision and an extract from the Minutes of the Government meeting come within the meaning of the internal communications of a public authority. This ground mandates a refusal under the AIE Regulations, subject to Regulation 10.”
16. The Department’s consideration, in its original and internal review decisions of article 10 and the public interest test carried out regarding each of the records at issue, included the following:
• The Department stated that Record 1 is a memorandum for the Government on the “Agri-Food Strategy to 2030” that was considered by the Government at is meeting on 21 July 2021; Record 2 contains notes taken at the Government meeting on 21 July 2021 on the Memorandum for The Government on the “Agri-Food Strategy to 2030”; Record 3 contains the Government Decision on the “Agri-Food Strategy to 2030” taken at the Government meeting on 21 July 2021, it is not a record by which the decision of the Government is made public; and Record 4 is an extract from the Minutes of the Government meeting of 21 July and contains the Government decision arising from discussion of the Memorandum for the Government “Agri-Food Strategy to 2030” at that Government meeting – this record contains the Government decision on the “Agri-Food Strategy to 2030” taken at the Government meeting on 21 July 2021.
• Factors in favour of release:
i. The general aims that underlie the AIE Directive 2003/4/EC lean in favour of release of the Record. These are conveniently set out in the recitals in the Directive as follows:
‘Increased public access to environmental information and the dissemination of such information >contribute to greater public 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.’
‘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. Grounds for refusal should be interpreted in a restrictive way ...’
ii. The value of openness and transparency about how the Government does its work on particular issues, so that decisions made by the Government can be explained and justified to the public at large who are affected by such decisions.
iii. The release of records to the public may serve to shed light on the factors taken into account by the
Government when making decisions.
• Factors against release:
i. Whether the record adds significantly to the information already available publicly such that the public interest would be better served by disclosure. In this regard it is noted that the Food Vision 2030 Strategy was published on 3 August 2021.
ii. The records comprise the internal communications of a public authority. Article 4 of Directive 2003/4/EC, which has been transposed into Irish law by the AIE regulations, provides that an AIE request may be refused where it concerns such internal communications, taking into account the public interest.
iii. Article 28.4.3 of the Constitution provides that: ‘The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter – (i) in the interests of the administration of justice by a Court, or (ii) by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.’ The rationale underlying this provision in the Constitution, inserted by Referendum in 1997, and articulated by the High Court (Attorney General v. Hamilton (No. 1) [1993] 2 IR 250) is that the Government must be facilitated to engage in full, free and frank discussion prior to making decisions. This is considered to be an essential proposition underpinning the requirement of Article 28.4.2 of the Constitution which provides that: ‘The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.’ The non-disclosure of different or dissenting views held by the members of the Government prior to the making of decisions is a necessary prerequisite to fulfil the obligation of collective responsibility for decision making and thereby uphold the Executive role of the Government envisaged by the Constitution. This matter was articulated clearly by the High Court in Attorney General v. Hamilton (No.1) [1993] 2 IR 250
iv. To protect the constitutional requirement of the collective responsibility of Government a moratorium on the release of Government records is required as this gives Ministers the assurance that they require to commit views freely to the record and not have those views divulged in a relatively short period of time. This principle is reflected in the provision the Oireachtas made in section 28(3)(b) of the Freedom of Information Act 2014 which envisages the withholding of records less than five years old.
17. The Department stated that having fully considered the relevant factors for and against disclosure in respect of each record it considered that the public interest in withholding the records outweighs the public interest in its disclosure and that the request for this record should be refused under articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations.
18. On 9 July 2024, the Investigator wrote to the Department informing it that the matter had been reactivated having been put on hold while awaiting the relevant judgment of the CJEU in case C-84/22. The Department was invited to make submissions to this Office. The Department responded on 26 July 2024, and its submissions can be summarised, as follows:
• The Department stated that its internal review decision (effective position) dated 24 November 2021, including the Appendix, remains its position in respect of this appeal. The Department stated that, in addition to the matters set out in that decision, it wished to make a number of points, particularly in light of the decision of the CJEU in Case C-84/22, noting that the High Court proceedings in which the reference was made to the CJEU have not yet been concluded.
• The Department stated that its position with regard to whether the relevant records come within definition of environmental information is maintained. It submitted that it “would place particular emphasis on the distinction between the opinions of Members of the Government expressed in the decision-making process at Cabinet and factual information.
• The Department submitted that the CJEU’s judgment supports its proposition that the records are covered by the exemption from release provided for the proceedings of a public authority, the confidentiality of which is protected by law. It stated that “the confidentiality of discussions at meetings of the Government are protected, as set out previously, by the Constitution and the Freedom of Information Act 2014.
• The Department submitted that the CJEU’s judgment also supports its proposition that the records are covered by the exemption from release provided for the internal communications of a public authority. It stated that the records had not left the internal sphere of the public authority at the time the request for access under the AIE Regulations was made.
• The Department stated that the “reasoning underlying [the] Department’s position is elaborated by the CJEU in its judgment and in Advocate General Kokott’s opinion in the case.”
• The Department stated that, in the circumstances the position in respect of the decision to refuse access to the records in question, having regard to the provisions of articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations, is maintained.
19. On 27 January 2025, my Investigator contacted the Department again, stating: “I refer to previous correspondence in relation to the above matter. This case involves article 8(a)(iv), article 8(b), article 9(2)(d) and article 10 of the AIE Regulations. As you are aware, a preliminary reference was made by the High Court in the separate matter of Right to Know CLG v An Taoiseach [2021] IEHC 233. The relevant judgment of the CJEU in case C-84/22, is available here . The subsequent judgment of the High Court in Right to Know CLG v An Taoiseach [2024] IEHC 713 dated 20 December 2024, is now available here . Accordingly, the Department is invited to make any further submissions you wish in this matter. I note that the Department has previously made submissions in this case, which will be taken into account.” The Department responded on 11 February 2025 and its submissions, included:
• “Following on from the ruling of the Court of Justice of the European Union, the recent High Court judgement provides clarity as to the specific limited circumstances in which the constitutional imperative that discussions at Government meetings remain confidential must yield to the requirements of the EU Directive.”
• “This affirmed the provisions in the EU Directive for exceptions to apply to records associated with meetings of Government which can be characterised either as internal communications or as confidential proceedings of public authorities under Article 4 [of the AIE Directive]. It further clarified that it is only in the instances where records characterised as confidential proceedings of public authorities i.e. at the final stages of decision-making, that the grounds for refusal do not apply in the case of information relating to emissions on the environment. This relates to the special status afforded by the EU Directive to information relating to emissions on the environment.”
• “[The Department] can confirm that, while the four records coming within the scope of the request are records relating to the confidential proceedings of public authorities, none of the records relates to emissions on the environment and, therefore, should continue to benefit from the provisions of Article 4.2(a) [of the AIE Directive, which is transposed by article 8(a)(iv) of the AIE Regulations]. This provides for refusal if disclosure of the information would adversely affect the confidentiality of the proceedings of a public authority, where such confidentiality is provided for by law subject to the public interest set out previously.”
20. As noted, during the course of this review, in submissions to this Office in February 2025 , the appellant indicated that a document described as “Government Decision” was introduced by the Department of the Taoiseach by way of an exhibit to an affidavit into related judicial review proceedings (In the Matter of Friends of the Irish Environment Ltd and The Government of Ireland, the Minister for Agriculture Food and the Marine, Ireland and the Attorney General [2023] IEHC 562, which was subsequently appealed to the Court of Appeal, [2025 IECA 71 ]). The appellant provided this Office with a copy of the document and the affidavit, which stated that the document was being made available in the judicial review proceedings by the Department without prejudice to its view that it was not releasable under the AIE Regulations. On 23 April 2025, the Investigator wrote to both the Department and the appellant noting that it appeared to her that the document provided by the appellant to this Office and exhibited by way of the Department’s affidavit in the related judicial review proceedings is Record 3 (Government Decision). She also noted that, having examined Record 4 (Minutes), it seemed to her that it essentially contains the same information as Record 3 (Government Decision).
21. The Investigator stated to the Department “I appreciate that Record 3 (Government Decision) was made available in the judicial review proceedings by the Department without prejudice to the Department’s view that it was not releasable under AIE. However, in circumstances where Record 3 was introduced in those proceedings and, I understand from the transcript of the hearing (available on the appellant’s website here ), seems to have been read out in Court, and Record 4 contains essentially the same information as Record 3 – would the Department be willing to administratively release Records 3 and 4 to the appellant in this matter at this stage?”
22. In response, the Department commented:
“While appreciating the practical approach underlying the proposal, this Department’s view is that these records should not be released. The records were provided to the Court in the context of litigation alone and their disclosure for that purpose could not be dispositive as to their disclosure in another context (unless it was by order of the Court).
As you acknowledge, the documents were made available to the Court by the Department in the judicial review proceedings without prejudice to its view about their release under the AIE Regulations, and the Department maintains this position. Article 28.4.3 of the Constitution provides that the confidentiality of discussions at the meetings of Government shall be respected in all circumstances save only where the High Court determines disclosure should be made. We are conscious also of the particular position afforded to records such as those in question under the Freedom of Information Act 2014 in accordance with the requirements of the Constitution. In brief, the Department’s position remains unchanged – while the records are records relating to the confidential proceedings of public authorities, none of the records relates to emissions on the environment and, therefore, should continue to be withheld under the provisions of Article 4 2.(a)”
23. As noted, on 28 May 2025, during the course of this review, this Office also provided both parties with a draft decision. In response, the Department stated that it did not have a submission to make on the draft decision.
24. On 21 July 2025, this Office wrote to the Department, noting that it was proposing to consider Records 3 and 4 within the scope of the review. It invited the Department to comment on the scope, Records 3 and 4, and the public interest test. In response, the Department made the following comments:
“Records 3 and 4
The Department remains strongly of the view that the disclosure of a document to the Courts in the context of litigation does not impact on the facts of this appeal and therefore should not be a factor in your decision. You have acknowledged the position in your earlier correspondence dated 23 April 2025 that the document was being made available to the Court in the judicial review proceedings by the Department without prejudice to its view that it was not releasable under the AIE Regulations. Article 28.4.3 of the Constitution of Ireland states that the confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter. The point made by the appellant that the document is no longer confidential because of its previous disclosure to the Court as a part of its proceedings is disputed. The Department has not been directed by the Courts to make the document publicly available to the appellant in this case or more widely and therefore the records should benefit from consideration on the same basis as any other record under the AIE Regulations.
Public Interest Test
In response to the various assertions by the appellant regarding the public interest test undertaken, I would like to make the following points.
• As required under the AIE Regulations, a separate public interest test was carried out in respect of each of the four records before a final decision was taken to refuse the records. For each document a balancing exercise was undertaken, in which various factors which favoured disclosure were weighed against the factors interests serving refusal. This exercise was carried out having regard to the requirement in the AIE Regulations to interpret the grounds for refusal in a restrictive way having regard to the public interest served by disclosure. While each record is considered on its own merits, there is clearly a commonality which exists across the four records as they all derive from the Government’s consideration of a single Memorandum for Government which will give rise to common factors and language.
• The Department disputes the assertion by the appellant that no relevant public interest factors have been identified and that the balancing exercise undertaken is flawed. The Department has set out clearly that one of the primary factors against disclosure is to protect the confidentiality of discussions among the members of Government on matters coming before Government. The proper and effective functioning of Government is critical to ensure a confidential space where matters can be raised and discussed in a full, free and frank manner. The preservation of this confidential space together with the principal of collective responsibility, both of which are protected under the Constitution, are important factors which cannot be set aside so easily when undertaking the public interest test. The extent to which the release of a record adds significantly to the information already in the public domain is also an important consideration where the factors favouring release speak to this issue and where the setting aside of Constitutional provisions are being considered in the public interest.
• It is also worth noting the absence of specific guidance at EU or domestic level on how to balance the public interest in such instances. I can assure you that all of the factors set out have been weighed up carefully in light of the specific content of the individual records and the aims of the AIE Directive.
Finally, the Department also disputes any assertion that a Memorandum for Government and accompanying decision cannot constitute Cabinet discussions. Observations provided by a Minister and any response to such observations by the authoring Minister set out in a Memorandum may reveal Cabinet discussions. Cabinet decisions may also reflect views expressed at the Government meeting.”
25. Following its internal review request, the appellant, on 14 September 2021, made the following comments regarding the Department’s decision:
“I don’t have any major submission to make because I see you have used a pre drafted template to refuse this request including a statement that a judgment reported in 1993 interpreted a constitutional provision inserted in 1997. I should also just observe for what it’s worth that a cabinet memo and a government decision cannot constitute cabinet discussions. Finally I note that these records relate to a decision involving the SEA Directive and Habitats Directive and are therefore a category of records which are normally automatically published.”
26. In its submissions to this Office dated 4 January 2022, the appellant included the following:
• “By way of background FV2030 is a strategy published by the Department of Agriculture Food and the Marine as a ten-year Strategy for the Irish agri-food sector (taken to include primary agriculture, food and drink processing and manufacturing, fisheries, aquaculture and fish processing, forestry and forestry processing and the equine sector). FV2030 was considered and apparently approved by the Cabinet on 21 July 2021. The strategy was subject to Strategic Environmental Assessment and Appropriate Assessment since it was a plan or programme which was likely to have significant effects on the environment including on European Sites protected under the Habitats Directive. FIE has brought judicial review proceedings challenging the lawfulness of the decision to adopt FV2030 on several environmental grounds (Friends of the Irish Environment v Government of Ireland and others High Court No 2021/888 JR) and seeks information on the consideration of FV2030 by the Government and the decision of the Government in that context.”
• “Access has been refused to the four identified records for almost identical reasons. In particular, the public interest balancing test appears to be identical for each record.”
• “The decision is incorrect to state that Article 28.4.3 of the Constitution is an overarching requirement which requires that the confidentiality of discussions at Government shall be respected in all Circumstances. This contention was emphatically dismissed by the High Court in Right to Know v An Taoiseach and another [2018] IEHC 372 in view of the primacy of EU law. At its highest Article 28.4.3 merely provides a legal basis for the confidentiality of cabinet discussions and no more.”
• “It should also be emphasised that this article of the Constitution only protects the confidentiality of discussions. It does not protect Government decisions or documents submitted to or considered or other records or parts of records which are not discussions. The origin of this provision of the Constitution is to protect collective cabinet confidentiality so that the individual positions of government ministers enjoys a degree of constitutional protection. This is reflected in the distinction in section 28 of the FOI Act 2014 between records which contain the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement which are permanently exempt and other records which may only be accessed after 5 years. Contrary to An Taoiseach’s decision, the five year moratorium imposed by section 28(3)(b) of the FOI Act is not an expression of Article 28.4.3 of the Constitution which does not apply to information other than cabinet discussions and which does not impose a time limit.”
• “The requested information is clearly environmental information since it relates to a measure (i.e. FV2030) which is likely to affect the environment. The likely environmental effects are confirmed by the fact that the strategy was adopted using the procedure set out in the Strategic Environmental Assessment Directive and the fact that it was also subject to Appropriate Assessment. There is simply no basis for the assertion that the views and opinions of Members of the Government expressed at cabinet meetings as opposed to factual information are, as a category of information, not environmental information. There have been three separate High Court judgments concerning cabinet confidentiality (An Taoiseach v Commissioner for Environmental Information [2010] IEHC 241; Right to Know v An Taoiseach and another [2018] IEHC 372; and Right to Know v An Taoiseach [2021] IEHC 233) and each of these has proceeded on the basis that the information requested was environmental information. In case CEI/18/0010 the Commissioner rejected an identical argument from the same public authority and found that a memorandum prepared for Government in relation to proposed changes to judicial review of planning decisions was environmental information. An Taoiseach appealed this decision to the High Court but subsequently withdrew the appeal and therefore must be taken to have already conceded that, at least in principle, cabinet discussions can be classified as environmental information depending on the subject matter.”
• “The High Court in Right to Know v An Taoiseach (Cabinet Confidentiality) [2021] IEHC 233 has expressed doubts that cabinet information can be classified as internal communications based on two opinions of the Advocate General, however the Court has decided to make a preliminary reference to the Court of Justice on this point.”
• “It should also be noted that the Commissioner has stated a case to the High Court in Commissioner for Environmental Information v Coillte Teoranta and People Over Wind (2021/242 MCA) seeking an interpretation of Regulation 8(a)(iv) of the AIE Regulations and whether an exemption from release under the Freedom of Information Act 2014 (the FOI Act) imposes confidentiality on an exempt record.”
• Record 1 – “The Cabinet Handbook contains a description of the purpose and content of a Memorandum for Government. The content of a Memorandum is specified as follows:
‘3.1 General Requirements Memoranda should be drafted bearing in mind that the Government are concerned with strategy and policy - not necessarily with operational detail. Language should not be discursive but should be sharp and clear. … 3.2 Every Memorandum should (a) prominently indicate the decision sought in clear and meaningful terms (b) provide a decision summary to facilitate quick identification of what is required and a cost summary to facilitate similar identification of any cost issues arising (c) ensure that all relevant considerations are brought to the attention of the Government in making a decision, that information provided is complete and accurate and that any qualifications are clearly stated (d) deal adequately with observations of Ministers consulted on the draft (e) address regulatory impact issues, where required, as set out at Paragraph 3.3 below (f) provide where appropriate a date or timetable for implementation (g) present factual information so that it can be easily extracted for Freedom of Information purposes (h) indicate if an announcement is intended and, if so, provide a draft press release or draft press briefing note to assist the Government Press Secretary with media enquiries.’
Although the contents of this record are not described, this appears to be a document that is submitted to the cabinet for discussion at a meeting of the Government and therefore must contain the information specified in the Cabinet Handbook. Insofar as the memorandum contains views of other Ministers, these are views expressed outside of Cabinet and therefore not protected by Article 28.4.3. By definition, therefore, Record No 1 does not contain “the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement” since the record was created before such statements were made.
This is confirmed by the decision maker classifying it as a record that would be exempt under Section 28(1)(a) of the Freedom of Information Act 2014. Therefore, this record is not protected by the confidentiality of cabinet discussions under Article 28.4.3 of the Constitution.
FIE does not accept that this record is confidential under any other legal theory. It does not accept that the mere fact that a record is exempt from release under the FOI Act renders a record confidential. The FOI Act does not create a new form of confidentiality under Irish law. The FOI Act merely provides a legal basis for the release of records held by or for FOI Bodies. A non-confidential record may be exempt without being confidential. Confidentiality must be established by reference to an identified legal basis such as statute, contract or under common law. The decision maker has therefore not identified a legal basis under national law for the alleged confidentiality of this record.
Reliance on Regulation 8(b) of the AIE Regulations is incorrect based on Right to Know v An Taoiseach and anor [2018] IEHC which held that a refusal in reliance on Regulation 8(b) was not in accordance with the letter and spirit of the AIE Directive or the AIE Regulations (para 89).
FIE submits that this document cannot be classified as an “internal communication” because it constitutes a memorandum submitted to government. The exception for internal communications is aimed at providing a protected space in order to pursue internal reflection and internal discussions (Land Baden-Württemburg Case C-619/19, para 47). However it only applies to information which has not left the public authority’s internal sphere (para 52). In the case of a memorandum for government, it has left the internal sphere of the relevant department once it is submitted to the cabinet.”
• Record 2, Record 3, Record 4 – “The reasoning set out above in relation to Regulation 8(b) and 9(2)(d) also applies to this record. In addition, a record of a Government Meeting is not an “internal communication” since it is a record of a formal meeting of the Cabinet at which a decision has been taken. More particularly a decision of the Government by definition cannot contain records of cabinet discussions or is it an internal communication.”
• “It should be recalled that there is a high threshold to be met by a decision maker who decides to refuse to grant access to environmental information. As repeated by the Court of Justice in Land Baden-Württemburg (para 69), ‘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. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.’ An Taoiseach has not shown how either the interest served by Regulation 9(2)(d) or 8(a)(iv) would actually or specifically be undermined. The decision merely states that the records are within a category of information that may be protected by these exceptions but fails to show how the interest would be undermined. On that basis alone the decision should be annulled. It is submitted that the decision does not depend on the outcome of the Preliminary Reference in Right to Know v An Taoiseach or the case stated in the People Over Wind matter since An Taoiseach has failed to demonstrate any prejudice to a protected interest.”
• “For completeness it is clear that the conclusion of the public interest balancing exercise is flawed in that it takes into account irrelevant factors and fails to take into account relevant factors. It is also flawed since there is no explanation as to how the factors that were considered have been weighed up.”
• “Factors favouring release include the following:
o This is a decision on a plan or programme which was subject to public participation. Parts of the decision have already been published. Files relating to these types of decisions are generally publicly available given that transparency in environmental decision making is of paramount importance under International, EU and Irish law.
o There is a positive obligation on public authorities to publish information such as that requested (particularly under Article 7(2)(g) and (h) of the AIE Directive.)
o The agriculture sector is one of the most polluting sectors in Ireland with severe impacts from intensive agriculture on air quality, GHG emissions, and water quality. FV2030 states that it seeks to provide a sustainable system of food production although this is hotly disputed. Therefore, there is a strong public interest in widest possible transparency over this controversial strategy which entails significant environmental risks.
o The Government was criticised by the Court of Appeal in Friends of the Irish Environment v Government of Ireland and others [2021] IECA 317 for not disclosing any records of the Government decision to adopt the National Planning Framework. A similar situation pertains in this case where FV2030 is now under challenge yet An Taoiseach refuses to disclose information relating to the decision. It is clear the Court of Appeal places significant emphasis on disclosure of information relating to Government decisions which are subject to judicial review.”
• “In terms of factors against release the factors cited are not relevant factors:
o An alleged incremental increase in accessible information is not a factor favouring refusal. This is a bizarre proposition which says that it is not in the public interest to release more information. This is contrary to the letter and spirit of the AIE Directive which requires the widest possible access to environmental information. In fact as far as FIE can establish there is no information relating to the Government’s consideration of FV2030 available, nor is the Government decision available.
o The mere fact that a record may be internal communication is not a relevant factor (see para 69 of Land Baden-Württemburg).
o The mere fact that cabinet discussions are protected by Article 28.4.3 of the Constitution is also an irrelevant factor.”
• “It can be seen therefore that no relevant public interest factors have been identified which would justify refusal.”
27. On 6 August 2024, my Investigator wrote to the appellant informing it that the matter had been reactivated having been put on hold while awaiting relevant judgment of the CJEU in case C-84/22. She explained that the purpose of the correspondence was to update the appellant on the appeal and to provide it with an opportunity to comment. She stated that any submissions made previously would also be taken into account.
28. The Investigator noted that, in light of comments made in its submissions to this Office dated 4 January 2022, she was drawing the appellant’s attention to the referral by the Commissioner under article 12(9)(a) of the AIE Regulations in another appeal (Coillte Teoranta and People Over Wind) seeking guidance from the High Court on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent that they involve an interplay with the Freedom of Information Act 2014 (the FOI Act). She informed the appellant that the relevant judgment of the High Court was available at [2023] IEHC 227 and that further information related to the FOI Act can be found at https://www.oic.ie/en/
29. The Investigator explained that, in the first instance, the Department is refusing access to each of the four records on the basis that they do not come within the scope of the definition of “environmental information” under the AIE Regulations. She outlined that, notwithstanding this view, the Department indicated that if the records were considered to be “environmental information” they were being refused under articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations. She noted that, in addition to the detail contained in its original and internal decisions (which she stated she would not repeat in the letter), the Department provided submissions to this Office in support of its position, which she summarised as follows:
• “The Department stated that its internal review decision (effective position) dated 24 November 2021, including the Appendix, remains its position in respect of this appeal. The Department stated that, in addition to the matters set out in that decision, it wished to make a number of points, particularly in light of the decision of the CJEU in Case C-84/22, noting that the High Court proceedings in which the reference was made to the CJEU have not yet been concluded.”
• “In response to comments I made to the Department in respect of my initial view that each of the records concerned did fall within the definition of environmental information provided for in article 3(1)(c) of the AIE Regulations, the Department stated that its position with regard to whether the relevant records come within definition of environmental information is maintained. It submitted that it “would place particular emphasis on the distinction between the opinions of Members of the Government expressed in the decision-making process at Cabinet and factual information.”
• “The Department submitted that the CJEU’s judgment supports its proposition that the records are covered by the exemption from release provided for the proceedings of a public authority, the confidentiality of which is protected by law. It stated that “the confidentiality of discussions at meetings of the Government are protected, as set out previously, by the Constitution and the Freedom of Information Act 2014.”
• “The Department submitted that the CJEU’s judgment also supports its proposition that the records are covered by the exemption from release provided for the internal communications of a public authority. It stated that “the records had not left the internal sphere of the public authority at the time the request for access under the AIE Regulations was made.”
• “The Department stated that the “reasoning underlying [the] Department’s position is elaborated by the CJEU in its judgment and in Advocate General Kokott’s opinion in the case.”
• “The Department stated that, in the circumstances the position in respect of the decision to refuse access to the records in question, having regard to the provisions of articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations, is maintained.”
30. The Investigator invited the appellant to make any comments it wished in response to her correspondence / the appeal generally, including in respect of article 10 of the AIE Regulations.
31. In response, the appellant stated that it did not have anything further to add to what was contained in its submissions of 4 January 2022.
32. On 27 January 2025, the Investigator contacted the appellant again, stating: “I refer to previous correspondence in relation to the above matter. This case involves article 8(a)(iv), article 8(b), article 9(2)(d) and article 10 of the AIE Regulations. As you are aware, a preliminary reference was made by the High Court in the separate matter of Right to Know CLG v An Taoiseach [2021] IEHC 233. The relevant judgment of the CJEU in case is available here . The subsequent judgment of the High Court in Right to Know CLG v An Taoiseach [2024] IEHC 713 dated 20 December 2024, is now available here . Accordingly, you are invited to make any further submissions you wish in this matter. I note that you have previously made submissions in this case, which will be taken into account.”
33. On 11 February 2025, the appellant responded, stating: “Since the application of the Court of Justice judgment requires knowledge of the contents of the documents concerned in my view the public authority should be asked to make a submission first on the application of the judgment and I should be given the opportunity to comment on it. This is on the basis that access is presumed unless the public authority can demonstrate that a refusal is justified. I should also flag at this stage that the public authority already released some information in the context of litigation taken by Friends of the Irish Environment and so should be asked to address this in a submission. It seems that there is inconsistency with its decision to refuse access under AIE but nonetheless grant access to some records.”
34. On 12 February 2025, the Investigator replied to the appellant, stating:
“First, I note your comment ‘I should also flag at this stage that the public authority already released some information in the context of litigation taken by Friends of the Irish Environment and so should be asked to address this in a submission. It seems that there is inconsistency with its decision to refuse access under AIE but nonetheless grant access to some records.’
As you are aware, the Department, in its original and internal review decisions on the AIE request at issue refused access to four records identified as relevant: (1) Memorandum for Government – Agri-Food Strategy to 2030; (2) ePink – Agri-Food Strategy to 2030; (3) Government Decision – Agri-Food Strategy to 2030; and (4) Extract from Minutes of Government Meeting of 21 July 2021.
Given your comment regarding release of information in the context of litigation, I would be grateful if you could clarify whether it is your view that some or all of the four records at issue may have been included in the information released in the relevant litigation. If so, I would appreciate if you could provide copies of the records concerned, details of the litigation concerned (e.g. parties involved, reference number), and, if possible, the date on which the records were received.
Second, on 27 January 2025, in addition to you being invited to make further submissions in light of the High Court’s recent decision, the Department was also similarly invited to make submissions to this Office. The Department’s submissions have been received and included the following comments:
• ‘Following on from the ruling of the Court of Justice of the European Union, the recent High Court judgement provides clarity as to the specific limited circumstances in which the constitutional imperative that discussions at Government meetings remain confidential must yield to the requirements of the EU Directive.’
• ‘This affirmed the provisions in the EU Directive for exceptions to apply to records associated with meetings of Government which can be characterised either as internal communications or as confidential proceedings of public authorities under Article 4 [of the AIE Directive]. It further clarified that it is only in the instances where records characterised as confidential proceedings of public authorities i.e. at the final stages of decision-making, that the grounds for refusal do not apply in the case of information relating to emissions on the environment. This relates to the special status afforded by the EU Directive to information relating to emissions on the environment.’
• ‘[The Department] can confirm that, while the four records coming within the scope of the request are records relating to the confidential proceedings of public authorities, none of the records relates to emissions on the environment and, therefore, should continue to benefit from the provisions of Article 4.2(a) [of the AIE Directive, which is transposed by article 8(a)(iv) of the AIE Regulations]. This provides for refusal if disclosure of the information would adversely affect the confidentiality of the proceedings of a public authority, where such confidentiality is provided for by law subject to the public interest set out previously.’”
35. The Investigator further stated “I understand that the Department’s recent submissions are in addition to the detail contained in its original and internal review decisions, and previous submissions to this Office (details of which were summarised to you on 6 August 2024). Given the Department’s comments, I wish to note that article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Regarding article 10(1) of the AIE Regulations, I note that the CJEU assessed the meaning of the phrase “information on emissions into the environment” in its decision in C-442/14 Bayer CropScience and Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden (Bayer).”
36. The Investigator acknowledged that the appellant had previously provided submissions to this Office on 4 January 2022 and in correspondence to this Office dated 20 September 2024, in response to her letter dated 6 August 2024, confirmed that it was continuing to rely on those submissions. She explained that that the appellant was now invited any further submissions it wished in relation to the matter and respond to the query regarding the records released in a litigation context and the records at issue in the appeal under review. She noted that any views that she had expressed were not binding on the Commissioner.
37. The appellant responded on 26 February 2025, making the following comments:
“First, it appears that the Public Authority no longer contends that the requested information is not environmental information. This appears now to be accepted. The Public Authority also now accepts that the records relate to the proceedings of a public authority as originally argued by the Appellant.
The Public Authority has not identified the legal basis for the alleged confidentiality. The Appellant accepts that records of statements made at meetings of the Government are protected by cabinet confidentiality under the Constitution but does not accept that other cabinet records are so-protected. No basis for the confidentiality of the latter category of documents has been advanced and in fact cabinet confidentiality has erroneously been asserted over these documents or those parts of documents not containing statements made at a meeting of the Government.
A copy of a document introduced into proceedings by the Public Authority “without prejudice” to this appeal is attached. This document is described as “Government Decision”. Although an assistant secretary swore an affidavit (also attached) claiming that his department still considered that release was exempt, the Public Authority voluntarily disclosed this document which was opened in court and is therefore effectively in the public domain. This undermines entirely the Public Authority’s claims that release should be refused to protect the interests served by Regulation 8(a)(iv) of the AIE Regulations. Clearly a document that a public authority has made available itself cannot cause the harm that the exemption seeks to protect. This also calls into question the basis for the refusal to release the other three documents.
The Right to Know case (C-84/22) established that: ‘50 The protection of ‘internal communications’ allows a protected space to be created for public authorities in order to engage in reflection and to pursue internal discussions. That exception has a particularly broad scope, and it is capable of applying at each stage throughout the work carried out by those authorities. It follows that, in order to determine whether the refusal to grant access to information falling within that exception is justified, the weighing of the interests involved, namely those which oppose disclosing that information and those which justify disclosing it, must be tightly controlled (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraphs 50, 58 and 60). 51 By contrast, the exception relating to the ‘proceedings of public authorities’ applies only to information exchanged in a very specific context. It allows Member States to protect solely information relating to the final stages of the decision-making process of public authorities and in respect of which they consider that such information, by virtue of its particularly sensitive nature, must be confidential. Therefore, the scope of that exception is precise and limited.’
The updated response from the Public Authority does not demonstrate why the exception is engaged to ensure a “protected space” or how the information is “particularly sensitive”. The mere categorisation of the documents is not sufficient to engage the exception. In fact the information is not particularly sensitive since some of it has already been put into the public domain by the Public Authority. The request concerns a decision taken more than three years ago, so by definition there cannot be an impact on the “protected space” of the Government.
It is for the public authority to justify its decision and give reasons. In the absence of a lawful justification the information should not be refused. The Court of Justice has already ruled (Land Baden-Württemberg Case C-619/19 §69) ‘[T]hat obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, 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. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.’
The Appellant refers again to the public interest discussion in its first submission. It also notes that this was a decision that involved public participation, environmental assessment and judicial review and that this shows that there is a public interest in access to the widest extent possible the information sought”
38. For clarity, I wish to note that the appellant was at no stage informed by my Investigator that the Department’s view that the information was not environmental information had been withdrawn. In her correspondence dated 6 August 2024, to which the appellant stated it had no response other than to point to its previous submissions, she explicitly stated that the Department did remain of the view that the information was not environmental information. She also pointed out that the Department had added that, if the records were considered to be “environmental information” they were being refused under articles 8(a)(iv), 8(b), and 9(2)(d). She noted that, in addition to the detail contained in its original and internal decisions (which she stated she would not repeat) the Department provided submissions to this Office in support of its position, which she summarised. The purpose of the Investigator’s correspondence dated 27 January 2025 was to allow the appellant to provide submissions in light of related litigation. Furthermore, in her correspondence dated 12 February 2025 she noted “I understand that the Department’s recent submissions are in addition to the detail contained in its original and internal review decisions, and previous submissions to this Office (details of which were summarised to you on 6 August 2024).”
39. As noted, during the course of this review, in submissions to this Office in February 2025 , the appellant indicated that a document described as “Government Decision” was introduced by the Department of the Taoiseach by way of an exhibit to an affidavit into related judicial review proceedings (In the Matter of Friends of the Irish Environment Ltd and The Government of Ireland, the Minister for Agriculture Food and the Marine, Ireland and the Attorney General [2023] IEHC 562 , which was subsequently appealed to the Court of Appeal [2025 IECA 71 ]. The appellant provided this Office with a copy of the document and the affidavit, which stated that the document was being made available in the judicial review proceedings by the Department without prejudice to its view that it was not releasable under the AIE Regulations. On 23 April 2025, the Investigator wrote to both the Department and the appellant noting that it appeared to her that the document provided by the appellant to this Office and exhibited by way of the Department’s affidavit in the related judicial review proceedings is Record 3 (Government Decision). She also noted that, having examined Record 4 (Minutes), it seemed to her that it essentially contains the same information as Record 3 (Government Decision).
40. The Investigator stated to the appellant “I appreciate that Record 3 (Government Decision) was made available in the judicial review proceedings by the Department without prejudice to the Department’s view that it was not releasable under AIE. However, in circumstances where Record 3 was introduced in those proceedings and, I understand from the transcript of the hearing (available here ) seems to have been read out in court, and Record 4 essentially contains the same information as Record 3 – I would be grateful if you could confirm whether your client continues to seek Records 3 and 4 in the context of this appeal.”
41. In response, the appellant commented:
“I confirm that my client still seeks all the records requested in its original appeal. The point here is that since the public authority voluntarily disclosed a record in open court, there can’t be any adverse effect from releasing it under AIE. There is no basis for a disclosure to be without prejudice to the right of access under the AIE Regulations. If there was a harm in releasing the requested information then the public authority presumably would not have disclosed it in litigation or alternatively would have sought court protection over its contents. It chose neither option.
Also just because two documents may have the same content or that the content is available on a third party website is not a basis for refusing access. The same logic applies, it is not for the Commissioner to determine whether a document ought to be withheld because he takes the view that the content is available elsewhere. The point is that the AIE Regulations allow access to the authentic version of documents held by or for public authorities. The fact that a copy of the document or its content may be in the public domain elsewhere is not relevant in that regard.
See judgment of the Court of Justice in case C-761/18 P, Leino-Sandberg v Parliament, §48 ‘Therefore, in a situation such as that in the present case, where the appellant has only obtained access to the document at issue disclosed by a third party and where the Parliament continues to refuse to grant her access to the requested document, it cannot be considered that the appellant has obtained access to that document, within the meaning of Regulation No 1049/2001, nor that, therefore, she no longer has any interest in seeking the annulment of the decision at issue solely as a result of that disclosure. On the contrary, in such circumstances, the appellant retains a genuine interest in obtaining access to an authenticated version of the requested document, within the meaning of Article 10(1) and (2) of the regulation, guaranteeing that that institution is the author and that the document expresses its official position.’
In summary the appellant maintains the appeal in respect of all the information sought.”
42. As noted, on 28 May 2025, during the course of this review, this Office provided both parties with a draft decision. In response, the appellant provided submissions to this Office, which included the below:
“Scope of the appeal
The draft decision is incorrect to remove Records 3 and 4 from the scope of the appeal. The Appellant expressly confirmed that they formed part of the appeal.
It is true that Record 3 was disclosed to the Appellant as part of the litigation in Friends of the Environment v Government of Ireland (2021/888 JR), the record was disclosed on a “without prejudice” basis. In other words the public authority still maintains that access to it ought still be refused. While it is true that the Appellant has the document and it is effectively in the public domain since it was opened in court, the public authority’s position is that if someone else requests it, such a request will be refused. While this is implausible, it remains its position. It appears to be an untenable position, but nonetheless remains the position.
The Commissioner therefore cannot exclude it from the scope of the appeal since the right of access remains disputed.
The conclusion that the Commissioner should draw from the above is that the document is no longer confidential since it has left the sphere of public authorities and is therefore no longer an internal communication and therefore neither of the exceptions under Regulation 8(a)(iv) and 9(2)(d) are engaged by Record 3.
With Record 4, the decision records that “it appeared to [the investigator] that the document provided by the appellant to this Office and exhibited by way of the Department’s affidavit in the related judicial review proceedings is Record 3 (Government Decision). She also noted that having examined Record 4 (Minutes), it seemed to her that it essentially contains the same information as Record 3 (Government Minutes).” The draft decision then records the Commissioner’s agreement with this description of Record 4.
Record 4 is not in possession of the Appellant and has never been received, yet the draft decision excludes it from the scope of the appeal simply because the Commissioner has indicated an intention to decide that it “seems” to “essentially” contain the same information as Record 3. It is not claimed that it is a duplicate record or even that the content is identical. There is no legal basis under the AIE Regulations cited for this part of the draft decision.
This is not a basis for the Commissioner to unilaterally exclude a record from the scope of the appeal. If the Record contains essentially the same information as a record that is no longer confidential then the logical conclusion is that the contents of Record 4 are also no longer confidential and therefore none of the exceptions are engaged and it should be released.
Therefore the Commissioner’s proposed findings of fact in relation to the contents and lack of confidentiality of Records 3 and 4 are not ones that support a conclusion that they fall outside the scope of the appeal but rather that these are not confidential records and therefore the public authority’s justification for refusal is incorrect.
The Commissioner’s draft decision therefore erred in not including Records 3 and 4 within the scope of the appeal and further in not annulling the public authority’s refusal and directing that they be released since they have lost confidentiality due to their disclosure by the public authority.
Regulations 8(a)(iv) and 9(2)(d)
Regulations 8(a)(iv) is engaged where it can be demonstrated that there would be an adverse effect on the confidentiality of the proceedings of a public authority. Regulation 9(2)(d) provides for an exception if the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure. These provisions transpose Article 4(2)(a) and 4(1)(e) of the AIE Directive respectively.
The Court of Justice has interpreted these provisions in Right to Know v An Taoiseach C-84/22 and held that the exception in Regulation 8(a)(iv) is a special case of Regulation 9(2)(d):
47 Indeed, point (a) of the first subparagraph of Article 4(2) of Directive 2003/4 must be regarded as constituting a lex specialis in relation to point (e) of the first subparagraph of Article 4(1) of that directive. Thus, if the conditions for applying the more specific exception laid down in respect of the ‘proceedings of public authorities’ are in fact satisfied, the application of that exception takes precedence over that of the exception relating to internal communications, which is more general in scope.
What this means is that the two exceptions concern the same type of information “internal communications” but which of the two exceptions applies depends on what stage in a deliberative process the information relates to.
The concept of “internal communications” has been interpreted in Land BadenWürttemburg (Internal Communications) C-619/19:
37 As regards the concept of ‘internal communications’, the Court has held that the word ‘communication’ relates 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.
38 As regards the word ‘internal’, it relates to information which does not leave the internal sphere of a public authority, in particular when it has not been disclosed to a third party or been made available to the public.
39 Where a public authority holds environmental information that it has received from an external source, that information may also be ‘internal’ if it was not or should not have been made available to the public before that authority received it and it does not leave that authority’s internal sphere after it received it.
The draft decision does not demonstrate that the requested information consists of internal communications, it does not set out why the requested information is a “communication” or why it is “internal”. These are essential elements of both Regulation 8(a)(iv) and 9(2)(d).
It is clear that neither Record 3 nor 4 satisfy this requirement because they have been found not to be confidential. It also appears that part of Record 1 are also not confidential since the Commissioner is proposing to make a finding that section 28 of the Freedom of Information Act 2014 (FOI Act) doesn’t apply to them. It also appears that Record 2 is not a communication nor is it confidential.
The second point is that while the two exceptions concern the same type of material the exceptions are mutually exclusive. In other words, a record can’t simultaneously come within both exceptions. The line is drawn by reference to the stage in the deliberative process that the information relates since Regulation 8(a)(iv) is a special case of 9(2)(d). Regulation 8(a)(iv) “applies only where the exchange of information takes place in the course of the final stage of a decision-making process which is clearly defined as ‘proceedings’ and the confidentiality of which is provided for by law.” (Right to Know §48).
The exceptions cannot be applied cumulatively (Right to Know §46)
Therefore the dividing line between the two exceptions depends on when the exchange of information took place, and not the content of the information exchanged.
The draft decision therefore, having identified the cabinet meeting as “proceedings”, is incorrect to separate out different parts of the records as coming with Regulation 8(a)(iv) and other parts within Regulation 9(2)(d).
The Commissioner makes the distinction based on whether Section 28 of the Freedom of Information Act 2014 Act applies to different parts of the records. The logical error in the draft decision is that if the confidentiality of certain parts of the records are not protected by Section 28 and Regulation 8(a)(iv) then they must be protected by Regulation 9(2)(d). This is an incorrect interpretation of the Court of Justice judgment in Right to Know.
The conclusion that ought to be drawn is rather that the parts of Record 1 that don’t come with section 28 of the Freedom of Information Act 2014 are simply not confidential and therefore can’t be classified as “internal communications” for that reason and should simply be released because their refusal is not justified.
Therefore the Commissioner should have concluded that only those parts of Record 1 that are confidential under Section 28 of the FOI Act can in principle come with the scope of Regulation 8(a)(iv).
Logically if there is no basis for confidentiality under Regulation 8(a)(iv) then there is also no basis for refusal under Regulation 9(2)(b) since it doesn’t make sense to engage an exception for internal communications over material that is not confidential.
>In relation to the adverse effect under Regulation 8(a)(iv) the draft decision proceeds on the erroneous basis that mere release constitutes an adverse effect since it would in effect remove the confidentiality. This is not a correct interpretation. Under this exception the adverse effect has to be measured against the interest protected by the confidentiality of the proceedings. This interest is the integrity of the proceedings not the confidentiality per se. To engage the exception it has to be shown by reference to the content of the confidential material how it would undermine the decision-making process through removal of confidentiality, not merely that the records will no longer be confidential if released. In the particular case here, the decision-making process has long been concluded and cannot, by-definition by adversely affected.
In any event the decision-making process here is one that was carried out under the SEA and Habitats Directives where decision files are routinely published and made available at the conclusion of the decision-making process. Just because the Government made the decision doesn’t make the materials any more sensitive compared to other procedures.
Neither the public authority nor the Commissioner in the draft decision has shown how release of the requested information would have any adverse effect on any decision-making process.
Therefore none of the exceptions identified by the Commissioner arises, and/or the Commissioner hasn’t justified their engagement or given reasons.
Public interest
The Appellant limits comments on the public interest to the Commissioner’s proposed conclusion that the public interest favours maintaining Regulation 8(a)(iv).
The Commissioner’s treatment of the public in the draft decision §119 to 126 is incorrect.
The public interest test has been the subject of detailed discussion by the Supreme Court in Minister for Communications v Information Commissioner [2020] IESC 57. This judgment was summarised and applied by the High Court in Industrial Development Authority v Information Commissioner [2024] IEHC 649.
The Appellant made, to the best of its ability without having sight of the records, specific public interest grounds for release of the information. These appear to have either been ignored by the Commissioner who refers only to generic public interest grounds for maintaining the exception and/or there is a lack of reasoning or explanation as to why they have been dismissed and/or why they don’t override the exception. The Commissioner simply says that access would provide “insight” into matters considered by the Government when reaching its decision. This is a meaningless formula of words and is generic and self-evident and ignores the specific content of the records or the context in which they were used as submitted by the Appellant.
On the other hand, where the Appellant has made specific arguments about the public interest in releasing the requested information, the Commissioner doesn’t rely on the content of the records in relation to his conclusion that the exception should be maintained.
In the IDA case the High Court held at §96(e) and (k) and §97:
‘(e) The onus to justify refusal rests on the FOI body (paras. 145-150 of Enet). A decision to refuse to release on the application of an exemption is not justified unless justifying reasons are provided (para. 157 of Enet). As the exemption is not general, its application should be considered in light of the contents of each document and the impact of disclosure (para. 152 of Enet);
(k) The test is whether the public interest that might be gained or lost by the release of the specified documents, having regard to their content, might, for reasons relevant to the document and its contents, be better served by either release or refusal (para. 204 of Enet). The public interest at play at this balancing stage of the process is the public interest in disclosure of the content of the documents (para. 205 of Enet).
97. In my view, the most concise statement of the test governing the decision to release or withhold an otherwise exempt document is found at para. 204 in Enet where Baker J. states:
“... The test is whether the public interest that might be gained or lost by the release of the specified documents having regard to their content, might for reasons relevant to the document and the record and their contents be better served by either release or refusal.”’
While the Appellant has shown by reference to the documents (as far as it can) why the public interest is better served with granting the request neither the public authority nor the Commissioner has demonstrated why the exception should be maintained by reference to the contents of the document.
The only reason put forward by the Commissioner to support the exception is that there is an expectation of confidence of the proceedings of the Government in certain circumstances (which is not correct since the Government is well aware of the AIE Regulations and their application to meetings of the Government). The Commissioner says there is a strong public interest for confidential information sharing in the final stages of a decision-making process and in ensuring the decision-making process is not undermined.
There is no evidence before the Commissioner or any explanation as to how the decision-making process (which has concluded) would be undermined. There is no discussion with respect to the why the specific content of this information ought to be refused having regard to these general statements. The Commissioner therefore proposes to make a decision maintaining the exception in the public-interest that doesn’t have regard to the specific contents of the records.
While the Commissioner says that due weight needs to be given to the above, the Commissioner doesn’t explain why this outweighs the factors in favour of granting the request, including the factors submitted by the Appellant.”
43. This review is concerned with whether the Department was justified in refusing access to the four records identified on the basis that they are not environmental information or under articles 8(a)(iv), 8(b), and 9(2)(d) of the AIE Regulations.
44. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with Article 2(1) of the AIE Directive, article 3(1) of the AIE Regulations provides that "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,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c). "
45. In addition, there are a number of judgments of the Superior Courts, which deal with the definition of environmental information; 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 No. 1), Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ) and Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2). There are also decisions of the European Court of Justice in case C-316/01 Glawischnig v Bundesminister für Sicherieit und Generationen (Glawischnig) and case C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), and 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 No. 1, RTÉ and ESB No. 2); and the decision of the UK Upper Tribunal in Department for Transport, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC) (Porsche).
46. According to national and EU case law, 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 No. 1 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. However, 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.
47. In its original and internal review decisions, the Department outlined its position that the records are not “environmental information” within the definition provided for in the AIE Regulations. It made various comments in support of its view, including:
• “Cabinet discussions, consisting as they do of the views of members of the Government at a Cabinet meeting, as opposed to factual information, do not fall within the scope of the definition of environmental information.”
• “More generally, the judgment in Attorney General v Hamilton made clear that the protection afforded by Article 28 of the Constitution in relation to Cabinet discussions is to facilitate ‘full, free and frank discussion between members of the Government prior to the making of decisions.’ This is very different to the “measures…policies, legislation, plans, programmes’ in the definition… which clearly refer to the outcome rather than the process of decision making.”
• “…the views and opinions of Members of the Government expressed at Cabinet meetings, as opposed to factual information, cannot be said to fall within the scope of the definition of environmental information. There is an important distinction to be drawn in this regard between the process of decision making and the outcome of the decision-making process. The principle underlying the provision at Article 28.4.3 of the Constitution is that confidentiality is required in order to ensure that the Government can have full, free and frank discussions prior to the making of decisions. The outcomes of the decision-making process are reflected in paragraphs (c) and (d) in the definition [of environmental information provided for in the AIE Regulations].”
• “…in case number CEI/18/0010 (Ryall and the Department of the Taoiseach) the Commissioner for Environmental Information did not agree with the Department’s that Cabinet discussions are not environmental information. However, I understand that the Department is defending its position on this issue in judicial proceedings Right to Know has brought against it (Ref: 2018/924JR) and the High Court determined in April 2021 to make a reference to the [CJEU] in this case regarding separate legal points.”
• “While the Commissioner for Environmental Information has found previously that he did not share the Department’s view that Cabinet discussions do not constitute environmental information in the context of the definition in the [AIE Regulations], the position in this regard cannot be considered to be settled. This is an issue on which the Department is defending its position in ongoing judicial proceedings in which the High Court determined in April of this year to make a Preliminary Reference to the [CJEU].”
48. During the course of this review, my Investigator wrote to the Department noting that whether information is “environmental information” is a threshold issue to be considered when processing an AIE request and exemption provisions only fall to be considered in respect of information that has first been determined to be “environmental information” such that it falls within the scope of the AIE Regulations. The Investigator referred to the wording of the definition and noted that there had been various court cases, which also deal with the definition.
49. The Investigator stated that upon her initial examination of the case file, it was her view that the records fall within the definition of environmental information provided for in article 3(1)(c) of the AIE Regulations. She noted that article 3(1)(c) 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.
50. The Investigator noted her view that Food Vision 2030 is a measure likely to affect the environment within the meaning of paragraph (c) and that each of the records at issue are information “on” that measure i.e. Food Vision 2030. She stated that it was, therefore, her view that the records are “environmental information” under the AIE Regulations.
51. The Investigator asked if the Department was in a position to accept that the records withheld are “environmental information” under the AIE Regulations. She also asked, if the Department remained of the view that the records at issue are not “environmental information”, for the Department to explain the reasons why it considered the records are not environmental information, in particular, having regard to article 3(1)(c) of the AIE Regulations.
52. In response, the Department referred to its internal review decision. It also stated that “[t]he position of this Department with regard to whether the records in question come within the scope of the definition of environmental information is maintained, as set out previously” and that it “would place particular emphasis on the distinction between the opinions of Members of the Government expressed in the decision-making process at Cabinet and factual information.” The Department provided no further detail in support of its view that the records identified are not “environmental information.”
53. Before considering whether the information at issue is “environmental information” in detail, I wish to address Department’s comments regarding 2018/924JR and its defending of its position that information in that case is not “environmental information”. As indicated above, this appeal was placed on hold pending the receipt of guidance from the CJEU in respect of a preliminary reference made by the High Court in the separate matter of Right to Know CLG v An Taoiseach [2021 IEHC 23 ] (High Court Reference: 2018 942 JR). Following the relevant judgment of the CJEU in case C-84/22 , this case was reactivated. Subsequently the judgement in the relevant High Court proceedings in which the reference was made was delivered. I also note that those High Court Proceedings (2018 942 JR) follow on from previous proceedings, An Taoiseach and Commissioner for Environmental Information and Gary Fitzgerald [2010 IEHC 241 ](High Court Reference: 2008 183 MCA), and Right to Know v An Taoiseach and Minister for Communications, Climate Action and Environment [2018 IEHC 372 ] (High Court Reference: 2016 697 JR).
54. In none of the judgments linked in the foregoing paragraph is a specific decision made on whether records of meetings of the Government / Cabinet discussions are “environmental information”, rather they discuss exemption provisions provided for in the AIE Regulations. As indicated, the Department provided no indication to this Office regarding why it considered records of meetings of the Government / Cabinet discussions not to be “environmental information” other than to highlight “the distinction between the opinions of Members of the Government expressed in the decision-making process at Cabinet and factual information” nor did it specifically address why it disputed my predecessor’s decision in case CEI/18/0010. . In any event, in each individual case whether the specific information at issue is environmental information must be considered in light of the particular factual circumstances concerned, which I will proceed to do below.
55. However, at this juncture it is also important to note that I simply do not agree that the definition of environmental information is confined to “factual information”. The judgments on the definition of environmental information cited above have consistently supported a broad approach to the definition. For example, in ESB No. 1, the High Court highlighted that the definition of environmental information extends beyond information that is “intrinsically environmental”. Indeed, regardless of whether information comprises views, opinions, or purely factual information, the question that must be asked is whether the specific information at issue falls within the definition provided for in the AIE Regulations.
56. In my view, paragraph (c) of the definition, 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 most relevant to this review.
57. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB No. 1 at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure ’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity ” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term‘activity ’ (RTÉ at paragraph 19).
58. I consider it useful to refer to Food Vision 2030 at this point. According to the Department’s website :
The Food Vision 2030 Strategy is a new ten-year Strategy for the Irish agri-food sector (taken to include primary agriculture, food and drink processing and manufacturing, fisheries, aquaculture and fish processing, forestry and forestry processing and the equine sector). Its Vision is that Ireland will become a world leader in Sustainable Food Systems (SFS) over the next decade. This will deliver significant benefits for the Irish agri-food sector itself, for Irish society and the environment. In demonstrating the Irish agri-food sector meets the highest standards of sustainability – economic, environmental, and social – this will also provide the basis for the future competitive advantage of the sector.
By adopting an integrated food systems approach, Ireland will seek to become a global leader of innovation for sustainable food and agriculture systems, producing safe, nutritious, and high-value food that tastes great, while protecting and enhancing our natural and cultural resources and contributing to vibrant rural and coastal communities and the national economy.
The Strategy consists of 22 Goals, grouped into four high-level Missions for the sector to work toward:
(i) A Climate Smart, Environmentally Sustainable Agri-Food Sector
(ii) Viable and Resilient Primary Producers with Enhanced Well-Being
(iii) Food Which is Safe, Nutritious And Appealing, Trusted And Valued at Home and Abroad
(iv) An Innovative, Competitive and Resilient Agri-Food Sector, Driven by Technology And Talent”
59. I also note the comments made in the press release press release for the launch of the policy, including:
“Speaking at the launch of the policy, An Taoiseach Micheál Martin said:
‘I am delighted that the agri-food stakeholder committee has agreed this ambitious “Food Vision 2030” Strategy. Agriculture, food and the marine is our largest indigenous sector. It is engrained in the fabric of Irish society and is one of the main drivers of our economy, especially in rural and coastal areas. The vision of being a world leader in Sustainable Food Systems acknowledges the challenges the sector faces, not least environmentally, but crucially it also charts a pathway for the future. We accept the challenge put to Government, to work with the sector in ensuring its future sustainability, economic, environmental and social, and in realising the inherent opportunities that presents’.”
60. Having examined the Department’s decisions and submissions to this Office while I note what appears to me to be the Department’s consideration of whether Cabinet discussions are a measure or activity within the meaning of paragraph (c), I do not consider that to be the correct measure or activity for the purposes of this review, acknowledging that in identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). I am also cognisant that, in identifying the relevant measure or activity, information may be “on” more than one measure or activity. The Department identified the four records at issue as coming within the scope of the appellants’ request for information relating to “Food Vision 2030”. I am satisfied that that Food Vision 2030 is a policy and, accordingly, is a measure within the meaning of paragraph (c). As it is the overall policy that has generated these records, I think that it is appropriate to use this as the relevant measure in this case.
61. 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. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that “something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the “general and unlimited right of access” that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive)” (paragraph 63).
62. In my view, it is evident that there is a real and substantial opportunity that Food Vision 2030 will affect the environment in a significant manner. I have highlighted, by way of example, some of the elements of Food Vision 2030 that support this view. The Foreword to the policy, prepared by the Chair of the 2030 Agri-Food Strategy Stakeholder Committee, states “The Stakeholder Committee’s terms of reference were to develop a new Strategy for the Irish agri-food sector that would outline the vision and key objectives, with associated actions, to ensure its economic, environmental and social sustainability to 2030.” There are four high level missions, including “[a] climate smart, environmentally sustainable agri-food sector”, which are supported by 22 goals. The Foreword also includes:
The Strategy has set the objective of achieving a carbon-neutral food system by 2050, with verifiable progress by 2030, encompassing emissions, water quality and biodiversity. It builds on Ag Climatise (December 2020), the roadmap for delivering the emissions targets for agriculture in the Government’s 2019 Climate Action Plan. Ag Climatise will require further adjustment to take on board evolving national and international policies. The other strands of policy to achieve the sector’s climate neutrality objective are measures to increase its role in carbon sequestration, especially through forestry, and the scale-up of renewable energy sources, through anaerobic digestion, solar energy and greater energy efficiency. The coming decade will see carbon farming offering a potential new source of income for farmers, which will require a new regulatory framework at EU and national level, and payment for the delivery of other eco-system services.
An urgent action in the Strategy is to produce detailed plans by Q2 2022 to manage the sustainable environmental footprint of the dairy and the beef sectors. Ag Climatise makes clear that any increase in biogenic methane emissions from increased livestock numbers will jeopardise the achievement of the sector attaining carbon neutrality by 2050. This issue is the subject of strongly opposing views, and will need further detailed examination in order to make an informed policy choice.
In my view, the debate between agricultural and environmental interest groups has become excessively polarised in Ireland. In February 2021, the Environmental Pillar representative withdrew from the 2030 Stakeholder Committee, stating their view that the Pillar’s recommendations were insufficiently reflected in the draft. This withdrawal was a matter of regret to the Committee, all the more so given the valuable contribution the representative had made up to that point. The Strategy in its final form has, in the view of the Committee, recommended policies to achieve a balance between economic, environmental and social dimensions of sustainability. The Strategy takes a systematic and comprehensive approach to dealing with the range of environmental challenges facing the sector, spelling out a vision of how it can make an important contribution to Ireland achieving its climate and environmental targets, through a dynamic combination of urgent short-term action to tackle existing problems of emissions, water quality and biodiversity within a longer term vision to achieve 2030 targets; increased carbon sequestration including forestry; and a scale-up of on-farm renewable energy sources. It includes many of the suggestions put forward by the Environmental Pillar. It is in Ireland’s interest that the Strategy can attract a wide level of political and societal consensus: this will be the best basis for ensuring its implementation and for it to be recognised as a truly national policy.
I believe that the final Strategy provides a basis for a renewed dialogue involving the representatives of the Environmental Pillar towards finding sufficient common ground on which to work together towards an agreed vision for the future.”
63. In addition, I note, for example, the reference to the “The Environment” under the heading “The Wider Context and the Need for a Ten Year Agri-Food Strategy” where it states:
The Environment
“Agriculture has a key role in protecting both our climate and environmental credentials. The sector is the largest contributor to Ireland’s greenhouse gas emissions, accounting for around a third, and from an air quality perspective is almost exclusively responsible for ammonia emissions. While challenging from an Irish perspective, and unusual in an international context, these facts are reflective of the economic, and historical, importance of agriculture in Ireland, relative to other industries. As the predominant land use in Ireland, agriculture exerts significant pressure on water quality. Changes in agriculture, forestry and fishing activities have also impacted on biodiversity on land and sea. While overall bovine numbers have remained relatively stable, the removal of milk quotas has led to an expansion in the dairy herd, resulting in particular environmental pressures. However all farming systems have a role to play in reducing agriculture’s impact on climate and the environment. Facing into the decade to 2030, the agri-food sector can make significant and urgent improvements in its environmental footprint. With leadership from stakeholders, the sector can take the steps necessary to improve its environmental performance and protect and enhance its reputation as a sustainable producer of quality food. It will also mean that Ireland can take a leading position internationally as an advocate of Sustainable Food Systems.”
64. Furthermore, I note that a Strategic Environmental Assessment (SEA) and Appropriate Assessment were prepared to determine the likely significant effects of the strategy on the environment of implementing the Strategy. The Strategy outlines that “these were then published as part of a public consultation, the results of which were considered by the Stakeholder Committee prior to finalising the Strategy.” The SEA and AA information is available here
65. Having regard to Food Vision 2030 and all of the above, I am satisfied that Food Vision 2030 is a measure likely to affect the environment. I find it difficult to understand how anyone could conclude otherwise.
66. As “any information … on” a measure or activity affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information “on” such a measure (Redmond at paragraphs 57 and 59). As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). The question as to whether information is “on” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure” (at paragraph 48).
67. Importantly, while Henney uses the terms “critical”, “fundamental” or “integral”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
68. I note the purposive test as articulated in Henney. The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in 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 AIE Directive (see Redmond at paragraph 99). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99). The test set out in Henney was also explicitly endorsed by the High Court in the RTÉ case (see paragraph 52) and is also referenced in the recent ESB No. 2 judgment.
69. 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 information at issue and the extent to which I can describe certain matters in my analysis is limited. However, I am satisfied that the four records at issue can reasonably be described as follows:
• Record 1: Memorandum for Government – Agri-Food Strategy to 2030 – This is the Memorandum for Government, comprising a proposal seeking a Government decision regarding the Agri-Food Strategy to 2030 (Food Vision 2030). The Cabinet Handbook outlines that “[p]roposals requiring a Government decision should be the subject of a memorandum from the responsible Minister. At Government, Ministers normally make a short oral presentation, based on the memorandum.” The Cabinet Handbook also sets out the type of information to be included in the memorandum and procedural requirements.
• Record 2: ePink – Agri-Food Strategy to 2030 – This is a very brief record of what occurred at the Government Meeting of 21 July 2021 in respect of Agri-Food Strategy to 2030 (Food Vision 2030).
• Record 3: Government Decision – Agri-Food Strategy to 2030 – This is a record of the Government decision regarding the Agri-Good Strategy to 2030 (Food Vision 2030).
• Record 4: Extract from Minutes of Government Meeting of 21 July 2021 – This is a record recording the Government decision regarding the Agri-Food Strategy 2030 (Food Vision 2030). The substantive content of Records 3 and 4 is identical, insofar as it contains a note of the Government’s decision. While there are some differences in the administrative text accompanying that note (for example, in Record 3 the administrative headings appear in Irish and it includes a list of the Ministers’ Offices to whom a copy of the record was sent), I am satisfied that the differences will not have a material impact on my decision in respect of them.
70. In this case, the measure identified is Food Vision 2030, which is likely to affect the environment. The question to be considered is whether the four records at issue are sufficiently connected to Food Vision 2030. Having examined the records, I am satisfied that they each concern Government decision-making regarding Food Vision 2030 and, accordingly, relate to Food Vision 2030.
71. As noted above, information may not be “on” a relevant activity or measure if it is not consistent with or does not advance the purpose of the Aarhus Convention and the AIE Directive;
• “Recognizing that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns” (paragraph 9 of the Preamble to the Aarhus Convention)”
• “Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment” (paragraph 10 of the Preamble to the Aarhus Convention)
• “Increased public access to environmental information and the dissemination of such information contribute 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.” (Recital 1 of the AIE Directive)
72. Food Vision 2030 clearly has an environmental effect. In my view, public access to the records at issue, relating to Government decision-making regarding Food Vision 2030, would contribute to the accountability and transparency of that decision-making, contribute to a greater awareness of environmental matters, and strengthen public support for decisions on the environment. Accordingly, it would be in line with the purpose of the Aarhus Convention, as set out in paragraphs 9 and 10 of the Preamble, and the AIE Directive, as set out in Recital 1.
73. In all the circumstances, I find that the four records at issue amount to information “on” Food Vision 2030, a measure which is likely to affect the environment.
74. In conclusion, I find that the four records at issue are environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. In light of this finding, it is not necessary for me to consider whether the records also fall within other paragraphs of the definition.
75. I will now consider if any of the exemptions applied are satisfied.
76. Both the Department’s and the appellant’s positions are set out above and while I do not repeat them in full below, I can confirm I have considered them.
77. Article 8(a)(iv) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts). This provision seeks to transpose Article 4(2)(a) of the AIE Directive, which in turn is based on Article 4(4)(a) of the Aarhus Convention.
78. Article 8(b) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information to the extent that it would involve the disclosure of discussions at one or more meetings of Government, is prohibited by Article 28 of the Constitution.
79. 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.
80. Article 10(1) of the AIE Regulations, provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Article 10(2) of the AIE Regulations provides that the reference in 10(1) to information on emissions into the environment does not include a reference to any discussions on the matter of such emissions at any meeting of the Government. 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.
81. The judgment of 23 April 2021 in Right to Know CLG v An Taoiseach [2021 IEHC 233 ] sets out the case law on cabinet confidentiality and its interaction with the AIE Regulations. In addition to noting the disputed characterisation of discussions at meetings of Government for the purposes of AIE (i.e. whether 8(b) is a subset of article 8(a)(iv) or 9(2)(d) of the AIE Regulations), it also noted that “the High Court has…confirmed that – notwithstanding the apparently mandatory terms of article 8(b)—there is an obligation, even in the case of records of discussions at meetings of the Government, to weigh the public interest served by disclosure against the interest served by refusal before a decision to refuse access can be made.” The preliminary reference made by the High Court in that case concerned the interaction between the aforementioned articles and the characterisation of “records of formal meetings of the executive branch of government of a Member State, at which members of the government are required to meet and act as a collective authority.”
82. The CJEU, in case C-84/22 , noted “By its first question, the referring court asks, in essence whether Article 4 [of the AIE Directive] is to be interpreted as meaning that records of formal meetings of the government of a Member State fall within the exception to the right of access to environmental information laid down in [Article 4(1)(e) of the AIE Directive (article 9(2)(d) of the AIE Regulations)] in respect of ‘internal communications’, or within the exception laid down in [Article 4(2)(a) of the AIE Directive (article 8(a)(iv) of the AIE Regulations)] in respect of the ‘proceedings of public authorities’. The CJEU’s assessment of this First Question, included the following comments at paragraphs 34 to 57, which I consider relevant to set out at this point:
“34. According to settled case-law, the right of access to environmental information provided for under Directive 2003/4 means that the disclosure of such information should be the general rule and that public authorities should be permitted to refuse a request for environmental information only in specific and clearly defined cases. The exceptions to the right of access should, consequently, be interpreted in a restrictive way, whereby the public interest served by disclosure should be weighed against the interest served by the refusal (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraph 33 and the case-law cited)”
35. Article 4 of that directive specifically sets out the exceptions which Member States may establish to the right of access to environmental information. In so far as such exceptions have in fact been transposed into national law, it is permissible for the public authorities to rely upon them in order to oppose requests for information that they receive (judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraph 31).
>[Internal Communications]
36. Thus, Member States may, pursuant to point (e) of the first subparagraph of Article 4(1) of Directive 2003/4, provide for a request for environmental information to be refused if it concerns ‘internal communications’, taking into account, however, the public interest served by disclosure.
37. As regards the concept of ‘internal communications’, the Court has held that the word ‘communication’ relates 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 (judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraph 37).
38. As regards the word ‘internal’, it relates to information which does not leave the internal sphere of a public authority, in particular when it has not been disclosed to a third party or been made available to the public (judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraph 42).
39. Where a public authority holds environmental information that it has received from an external source, that information may also be ‘internal’ if it was not or should not have been made available to the public before that authority received it and it does not leave that authority’s internal sphere after it received it (judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraph 43).
40. The concept of a ‘public authority’ is defined in Article 2(2) of Directive 2003/4. It means, inter alia, ‘government’ and ‘other public administration’.
41. In the present case, the request for access relates to records of government discussions which, according to the information available to the Court, are, in principle, capable of falling within the concept of ‘internal communications’. Subject to matters to be determined by the referring court, in the first place, such records reflect information exchanged between members of an administration and therefore of a ‘public authority’; in the second place, in so far as they are distributed within that administration, they involve ‘communications’; and, in the third and last place, in view of their confidential nature as provided for under point 3 of Article 28(4) of the Constitution of Ireland, those records are not intended to be disclosed to the public and therefore retain their ‘internal’ character. [Article 28.4.3 of the Constitution provides: “The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter – (i) in the interests of the administration of justice by a Court, or (ii) by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance].
[Proceedings of Public Authorities]
42. In addition, pursuant to point (a) of the first subparagraph of Article 4(2) of Directive 2003/4, Member States may provide for a request for environmental information to be refused if disclosure of that information would adversely affect the confidentiality of the ‘proceedings of public authorities’, where such confidentiality is provided for by law.
43. As regards the concept of ‘proceedings of public authorities’, the Court has held that the term ‘proceedings’ refers to the final stages of the decision-making process of public authorities which are clearly defined as proceedings under national law and the confidentiality of which must be provided for by law (see, to that effect, judgment of 14 February 2012, Flachglas Torgau, C 204/09, EU:C:2012:71, paragraphs 63 and 64).
44. In the present case, as regards records of government discussions, it is established that they fall within the rules on confidentiality provided for in point 3 of Article 28(4) of the Constitution of Ireland. By contrast, the request for a preliminary ruling does not enable the Court to determine whether the records which are the subject of Right to Know’s request for access reflect discussions that took place in the course of the final stage of a decision-making process which has been defined as proceedings under Irish law. If that were the case, which is a matter for the referring court to ascertain, such records would fall within the concept of ‘proceedings of public authorities’.
[Interaction between “Internal Communications” and “Proceedings of Public Authorities]
45. Accordingly, subject to matters to be determined by the referring court, it cannot be ruled out that, in this instance, both the conditions for applying the exception to the right of access laid down in point (e) of the first subparagraph of Article 4(1) of Directive 2003/4 and the conditions for applying the exception laid down in point (a) of the first subparagraph of Article 4(2) of that directive are satisfied.
46. In that regard, it should be noted that a cumulative application of those two exceptions is not possible.
47. Indeed, point (a) of the first subparagraph of Article 4(2) of Directive 2003/4 must be regarded as constituting a lex specialis in relation to point (e) of the first subparagraph of Article 4(1) of that directive. Thus, if the conditions for applying the more specific exception laid down in respect of the ‘proceedings of public authorities’ are in fact satisfied, the application of that exception takes precedence over that of the exception relating to internal communications, which is more general in scope.
48. Specifically, in addition to the conditions for applying the latter exception, namely, in essence, the transmission of information exclusively within the internal sphere of a public authority, the exception in respect of the ‘proceedings of public authorities’ applies only where the exchange of information takes place in the course of the final stage of a decision-making process which is clearly defined as ‘proceedings’ and the confidentiality of which is provided for by law.
49. Moreover, the two exceptions correspond to two separate legal regimes.
50. The protection of ‘internal communications’ allows a protected space to be created for public authorities in order to engage in reflection and to pursue internal discussions. That exception has a particularly broad scope, and it is capable of applying at each stage throughout the work carried out by those authorities. It follows that, in order to determine whether the refusal to grant access to information falling within that exception is justified, the weighing of the interests involved, namely those which oppose disclosing that information and those which justify disclosing it, must be tightly controlled (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraphs 50, 58 and 60).
51. By contrast, the exception relating to the ‘proceedings of public authorities’ applies only to information exchanged in a very specific context. It allows Member States to protect solely information relating to the final stages of the decision-making process of public authorities and in respect of which they consider that such information, by virtue of its particularly sensitive nature, must be confidential. Therefore, the scope of that exception is precise and limited.
[Emissions into the Environment]
52. Furthermore, the EU legislature established a derogation from the exception laid down in point (a) of the first subparagraph of Article 4(2) of Directive 2003/4, in order to exclude expressly from that exception certain information of particular importance to the public. Thus, in accordance with the last sentence of the second subparagraph of Article 4(2) of that directive, the exception provided for in respect of the ‘proceedings of public authorities’ does not allow a request for access to environmental information concerning ‘information on emissions into the environment’ to be refused.
53. Accordingly, where a Member State has transposed point (a) of the first subparagraph of Article 4(2) of that directive and where the information whose disclosure is requested has actually been exchanged in the course of confidential proceedings, in such a manner that that information falls within the scope of that provision, it is for the competent national authorities to ascertain whether such information relates to emissions into the environment. Should that be the case, even if the abovementioned information is, in principle, regarded as confidential under national law, access to it cannot be refused, unless it is impossible to separate it out from the rest of the information exchanged in the same context (see, to that effect, judgment of 23 November 2016, Bayer CropScience and Stichting De Bijenstichting, C 442/14, EU:C:2016:890, paragraph 105).
[Public Interest Test]
54. Where it appears that the information sought does not relate to emissions into the environment, the competent national authorities must, in accordance with the second sentence of the second subparagraph of Article 4(2) of Directive 2003/4, weigh the public interest served by disclosure of that information against the interest served by the refusal to disclose it.
55. Such weighing of the interests involved is also required where, if the exception in respect of the ‘proceedings of public authorities’ is not applicable, the exception in respect of internal communications, as laid down in point (e) of the first subparagraph of Article 4(1) of Directive 2003/4, applies (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraph 58).
56. Lastly, it should be recalled that, in accordance with Article 4(4) of Directive 2003/4, the competent national authority must always establish whether some of the information sought may be separated out from the information covered by the applicable exception to the right of access, with the result that it may make partial disclosure (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C 619/19, EU:C:2021:35, paragraph 66).
[Conclusion on the First Question]
57. Having regard to all the foregoing considerations, the answer to the first question is that Article 4 of Directive 2003/4 must be interpreted as meaning that:
• the exception laid down in point (e) of the first subparagraph of Article 4(1) of that directive in respect of ‘internal communications’ covers information which circulates within a public authority and which, on the date of the request for access to that information, has not left the internal sphere of that authority – 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;
• the exception laid down in point (a) of the first subparagraph of Article 4(2) of that directive in respect of the ‘proceedings of public authorities’ covers only information exchanged in the course of the final stages of the decision-making process of public authorities which are clearly defined as proceedings under national law and in respect of which such law provides for a duty of confidentiality, and
• the cumulative application of the exceptions to the right of access laid down, respectively, in point (e) of the first subparagraph of Article 4(1) and in point (a) of the first subparagraph of Article 4(2) of that directive is precluded on the ground that the latter provision relating to the protection of the ‘proceedings of public authorities’ takes precedence over the former provision relating to the protection of ‘internal communications’.
83. Having regard to all of the above, I will proceed to consider article 8(a)(iv) of the AIE Regulations first, before proceeding to consider article 9(2)(d) of the AIE Regulations, if necessary.
84. Article 8(a)(iv) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts).
85. Article 10(1) of the AIE Regulations, provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. In the case of Bayer CropScience and Stichting De Bijenstichting, C 442/14 (Bayer), the CJEU assessed the meaning of the phrase “information on emissions into the environment”. The Bayer case involved a request for information relating to authorisation provided for the placing of plant protection products and biocides on the market. The request was made to the CTB, a Dutch public authority, under Dutch law transposing the AIE Directive.
86. In Bayer, the CJEU found, that the concepts of “emissions into the environment” and “information on emissions into the environment” are not to be interpreted in a restrictive way. This is because the inclusion of those concepts in the AIE Directive is designed to ensure that certain grounds for the refusal of information cannot be invoked against the disclosure of ‘information relating to emissions into the environment’. That provision in turn gives effect to the principle (provided for in article 4 and Recital 16 of the Directive) that disclosure must be the general rule of the AIE regime and the grounds for refusal must be interpreted restrictively, and to the general principle of the widest possible access to environmental information held by or for public authorities set out in Recital 1 (paragraphs 55-58).
87. The CJEU went on to find that, despite reference in the Aarhus Guide to the definition of “emissions” contained in the Industrial Emissions Directive, the concept of “emissions” in the AIE Directive was a wider one and was not limited to emissions emanating from industrial installations. It noted that such a restriction would be contrary to the express wording of article 4(4)(d) of the Aarhus Convention which provides that although information may be refused to protect the confidentiality of commercial and industrial information subject to certain conditions, this shall not apply with regard to “information on emissions which is relevant for the protection of the environment”. The CJEU pointed out that “information concerning emissions emanating from sources other than industrial installations…are just as relevant to environmental protection as information relating to emissions of industrial origin” (paragraph 72).
88. While the facts of Bayer are considerably different to those in this case, I consider that Bayer does provide useful guidance and makes it clear that the concept of “information on emissions into the environment” is to be interpreted broadly. However, article 10(1) states that where the request “relates to information on emissions into the environment”, certain exemptions do not apply. An over-broad interpretation of the term “relates to” could result in the override capturing any information that can somehow be linked to the subject of emissions.
89. In another decision of the CJEU, in C-673/13 P European Commission v Stichting Greenpeace Nederland and Pesticide Action Network Europe (PAN Europe), the court considered the appeal of a decision from the EU’s General Court concerning access to documents held by one of the EU institutions. The EU has separate regulations controlling access to such information, but where the information is environmental, the principles of the Aarhus Convention are applied. This includes an override to the use of certain exceptions where the information relates to emissions. The General Court had found that the requested information only had to be linked ‘in a sufficiently direct manner’ to emissions for the override to apply. The CJEU rejected that approach, finding that the override applied to: “… information which ‘relates to emissions into the environment’, that is to say information which concerns or relates to such emissions and not information with a direct or indirect link to emissions into the environment” (paragraph 78).
90. I wish to point out 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. While the records relate to Food Vision 2030, which is a policy that considers emissions, having considered the case law above and examined the specific content of the four records at issue, I am satisfied that neither the request nor the records themselves “relate to information on emissions into the environment” in the manner envisaged by article 10(1). Accordingly, I am satisfied that article 10(1) does not apply and I will go on to consider article 8(a)(iv) in further detail.
91. When relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect that confidentiality. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
92. The term “proceedings” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the CJEU in C-204/09 Flachglas Torgau GmBH v Bundesrepublik Deutschland set out that the concept of proceedings “refers to the final stages of the decision-making process of public authorities” (paragraph 63). A similar conclusion was reached by the CJEU in C-60/15 Saint-Gobain Glass Deutschland v Commission. Although that case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention, upon which both the AIE Directive and the AIE Regulations are based. The Court noted “…Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law, and not the entire administrative procedure at the end of which those authorities hold their proceedings” (paragraph 81). Also, Advocate General Szpunar in that case indicated that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see paragraph 51 of the Opinion).
93. As outlined above, I am satisfied that the four records at issue can reasonably be described as follows:
• Record 1: Memorandum for Government – Agri-Food Strategy to 2030 – This is the Memorandum for Government, comprising a proposal seeking a Government decision regarding the Agri-Food Strategy to 2030 (Food Vision 2030). The Cabinet Handbook outlines that “[p]roposals requiring a Government decision should be the subject of a memorandum from the responsible Minister. At Government, Ministers normally make a short oral presentation, based on the memorandum.” The Cabinet Handbook also sets out the type of information to be included in the memorandum and procedural requirements.
• Record 2: ePink – Agri-Food Strategy to 2030 – This is a very brief record of what occurred at the Government Meeting of 21 July 2021 in respect of Agri-Food Strategy to 2030 (Food Vision 2030).
• Record 3: Government Decision – Agri-Food Strategy to 2030 – This is a record of the Government decision regarding the Agri-Good Strategy to 2030 (Food Vision 2030).
• Record 4: Extract from Minutes of Government Meeting of 21 July 2021 – This is a record recording the Government decision regarding the Agri-Food Strategy 2030 (Food Vision 2030). The substantive content of Records 3 and 4 is identical, insofar as it contains a note of the Government’s decision. While there are some differences in the administrative text accompanying that note (for example, in Record 3 the administrative headings appear in Irish and it includes a list of the Ministers’ Offices to whom a copy of the record was sent), I am satisfied that the differences will not have a material impact on my decision in respect of them.
94. Having examined the records at issue, I am satisfied that they relate to the Government meeting on 21 July 2021 seeking a decision regarding Food Vision 2030 and that the meeting concerned the final stages of the decision-making process, such that the Government meeting is “proceedings” for the purposes of article 8(a)(iv) of the AIE Regulations. It is important to note that this finding relates solely to the particular Government meeting in this case.
Do the proceedings (the Government meeting on 21 July 2021) have an element of confidentiality? Is the confidentiality of those proceedings protected by law?
95. In its original and internal review decisions, the Department in refusing access under article 8(a)(iv) of the AIE Regulations referred to section 28(1)(a) of the FOI Act (Record 1), section 28(2)(a) of the FOI Act (Record 2), section 28(1)(b) of the FOI Act (Record 3 and Record 4), and Article 28 of the Constitution.
96. In light of comments made by the appellant in its submissions to this Office dated 4 January 2022 regarding the Department’s reliance on the FOI Act, this Office directed the appellant to the referral by the then Commissioner under article 12(9)(a) of the AIE Regulations in another appeal (Coillte Teoranta and People Over Wind) seeking guidance from the High Court on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent that they involve an interplay with the FOI Act. The relevant judgment of the High Court is available at [2023 IEHC 227 ]. I note the following comments of Hyland J:
“The exemptions in the FOI Act create protection for the confidentiality of proceedings of public bodies where records sought to be disclosed are found to be exempt within the meaning of the FOI Act, such that the FOI Act protects the confidentiality of the proceedings of public authorities for the purposes of Regulation 8(a)(iv) of the AIE Regulations, (public authorities being defined in those Regulations).” (paragraph 92)
97. While the High Court did not specifically comment on section 28 of the FOI Act, I am satisfied that it can be relied upon by the Department (a public body under the FOI Act) when seeking to apply article 8(a)(iv) of the AIE Regulations. Section 28 of the FOI Act provides:
(1) “A head may refuse to grant an FOI request if the record concerned—
(a) has been, or is proposed to be, submitted to the Government for its consideration by a Minister of the Government or the Attorney General and was created for that purpose,
(b) is a record of the Government other than a record by which a decision of the Government is published to the general public by or on behalf of the Government, or
(c) contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary General to the Government for use by him or her solely for the purpose of the transaction of any business of the Government at a meeting of the Government.
(2) A head shall refuse to grant an FOI request if the record concerned—
(a) contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and
(b) is not a record— (i) referred to in paragraph (a) or (c) of subsection (1), or (ii) by which a decision of the Government is published to the general public by or on behalf of the Government.
(3) Subject to this Act, subsection (1) does not apply to a record referred to in that subsection—
(a) if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public, or
(b) if the record relates to a decision of the Government that was made more than 5 years before the receipt by the head concerned of the FOI request concerned.
(4) A decision to grant an FOI request in respect of a record to which paragraph (a) or (b) of subsection (1) applies shall not be made unless, in so far as it is practicable to do so, the head concerned has, prior to the making of the decision, consulted in relation to the request with—
(a) the leader of each political party to which belonged a member of the Government that made any decision to which the record relates, and
(b) any member of the Government aforesaid who was not a member of a political party.
(5) Where an FOI request relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would be contrary to the public interest, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.
(6) In this section— “decision of the Government” includes the noting or approving by the Government of a record submitted to them; “record” includes a preliminary or other draft of the whole or part of the material contained in the record; ‘‘Government’’ includes a committee of the Government, that is to say, a committee appointed by the Government whose membership consists of— (a) members of the Government, or (b) one or more members of the Government together with either or both of the following: (i) one or more Ministers of State; (ii) the Attorney General.”
98. Article 28.4.3 of the Constitution provides:
The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter –
(i) in the interests of the administration of justice by a Court, or
(ii) by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.
Section 28(1)(a) of the FOI Act – Record 1
99. As noted above, the Department in refusing access to Record 1 under article 8(a)(iv) of the AIE Regulations referred to section 28(1)(a) of the FOI Act.
100. Section 28(1)(a) of the FOI Act provides that an FOI body may refuse to grant access if the record concerned has been, or is proposed to be, submitted to the Government for its consideration by a Minister for the Government or the Attorney General and was created for that purpose.
101. It is not a harm-based exemption such that release of the record would lead to particular consequences specified in the particular provision. There is no public interest override in this exemption under the FOI Act. The section provides for a class based exemption for certain records regardless of their contents. Previous decisions by the Information Commissioner have accepted that section 28(1)(a) applies to records such as Memoranda for Government and preliminary or draft versions of the whole or part of such documents
102. Section 28(1)(a) of the FOI Act is concerned with the status of a record, i.e. its submission to the Government by a Minister or the Attorney for consideration and its creation for that purpose. For section 28(1)(a) to apply, a record must fulfil the following three criteria:
• The record has been (or is/was proposed to be) submitted to the Government for its consideration,
• The record has been (or is/was proposed to be) submitted by a Minister of the Government or the Attorney General, and
• The record was created for the purpose of submission to the Government for its consideration.
103. Record 1 is a Memorandum for the Government prepared by the Minister for Agriculture, Food and the Marine. I am satisfied that it meets the requirements of section 28(1)(a) of the FOI Act.
104. However, that is not the end of the matter, as section 28(3) of the FOI Act provides that section 28(1)(a) does not apply to a record (a) if and insofar as it contains factual information relating to a decision of the Government that has been published to the general public or (b) if the record relates to a decision of the Government that was made more than five years before the receipt of the request. The relevant decision of the Government is dated 21 July 2021, I am satisfied that section 28(3)(b) does not serve to dis-apply section 28(1)(a) in this case.
105. Turning to section 28(3)(a), the term factual information is defined in section 2 of the FOI Act as including information of a statistical, financial, econometric, or empirical nature, together with any analysis thereof. The Information Commissioner takes the view that the use of the word “includes” in the definition of factual information means that while information of a statistical etc. nature should be regarded as factual, regard must also be had to the ordinary meaning of the term when considering its scope. The Information Commissioner considers that factual information would generally include, for example, material presented to provide a factual background to the central topic in a record. He also takes the view that factual information is distinguishable from information in the form of proposal, opinion or recommendation.
106. The effect of section 28(3)(a) is that factual information relating to a decision of the Government that has been published to the general public in a record to which section 28(1)(a) applies is not exempt under section 28(1)(a).
107. I am satisfied that Record 1 (Memorandum for Government) relates to a decision of the Government that has been published to the general public, namely Food Vision 2030, and that section 28(3)(a) falls to be considered. I understand that that Food Vision 2030 was launched on 3 August 2021 ( press release and report ) .
108. The Cabinet Handbook (2006) contains guidance on the layout and contents of memoranda. It suggests that every memorandum should present factual information so that it can be easily extracted for FOI purposes. The Department did not identify any specific information as being appropriate for release pursuant to 28(3)(a) of the FOI Act.
109. Having examined Record 1 (Memorandum for Government), much of the information contained therein comprises an account of the contents of Food Vision 2030, the vast majority, of which, in my view, is a factual recounting of that information. I find that section 28(1)(a) does not apply, by virtue of section 28(3)(a), to the following factual information contained in Record 1 (Memorandum for Government):
• Section 2 – Background Reason: all information, apart from paragraph 3 in 2.1 and the final sentence in 2.6.
• Section 3 – Public Announcement: all information
• Section 6 – Other Relevant information: all information, apart from the first two sentences of paragraph 2, the majority of paragraph 3 (not the first sentence), and the “Observations” included under this heading.
110. As I have found that section 28(1)(a) of the FOI Act does not apply to the information listed above, because of section 28(3)(a), that information cannot be refused under article 8(a)(iv) of the AIE Regulations. However, I am satisfied that section 28(3)(a) does not serve to dis-apply section 28(1)(a) of the FOI Act in respect of the remaining information in Record 1 (Memorandum for Government) and this information will be considered in further in the context of article 8(a)(iv) of the AIE Regulations below.
111. As noted above, the Department in refusing access to Records 3 and 4 under article 8(a)(iv) of the AIE Regulations referred to section 28(1)(b) of the FOI Act.
112. Record 3 is the Government decision concerning the Agri-Food Strategy to 2030 (Food Vision 2030) and Record 4 is the extract from the minutes of the Meeting of Government on 21 July 2021 pertaining to the Agri-Food Strategy to 2030 (Food Vision 2030).
113. Section 28(1)(b) of the FOI Act provides that an FOI body may for refuse to grant access if the record concerned is a record of the Government, other than a record by which a decision of the Government is published to the general public by or on behalf of the Government.
114. Having examined Records 3 and 4, I am satisfied they are records of the Government and are of a type covered by section 28(1)(b), however, as indicated in section 28(1)(b) itself, and as with section 28(1)(a), section 28(3)(a) provides that section 28(1)(b) does not apply to a record if and in so far as it contains factual information relating to a decision of the Government that has been published to the general public. Section 28(3)(b) also provides that section 28(1)(b) does not apply if the record relates to a decision of the Government that was made more than five years before the receipt of the request. The relevant decision of the Government is dated 21 July 2021, I am satisfied that section 28(3)(b) does not serve to dis-apply section 28(1)(b) in this case.
115. Turning to section 28(3)(a), I have discussed how this provision operates in further detail above.
116. I am satisfied that Record 3 (Government Decision) and Record 4 (meeting minute extract) relate to a decision of the Government that has been published to the general public, namely Food Vision 2030, and that section 28(3)(a) falls to be considered. As stated, I understand that that Food Vision 2030 was launched on 3 August 2021 ( press release and report ). Again, the Department did not identify any specific information in either Record 3 or 4 record as being appropriate for release pursuant to 28(3)(a) of the FOI Act.
117. Having examined Record 3 (Government Decision) and Record 4 (meeting minute extract), I note that Record 3 sets out the decision regarding the Agri-Food Strategy 2030 and Record 4 records that decision; the substantive content of both documents is the same. I am satisfied that all of the information contained in Records 3 and 4 is factual information that relates to Food Vision 2030 which was published by way of the press release and report . I find that section 28(1)(b) does not apply, by virtue of section 28(3)(a) to the factual information contained in Records 3 (Government Decision) and Record 4 (meeting minute extract), namely all of the information contained in those records.
118. As I have found that section 28(1)(b) of the FOI Act does not apply to the information in Records 3 and 4, because of section 28(3)(a), that information cannot be refused under article 8(a)(iv) of the AIE Regulations.
119. As noted above, the Department in refusing access to Record 2 under article 8(a)(iv) of the AIE Regulations referred to section 28(2)(a) of the FOI Act.
120. Section 28(2) provides that access shall be refused if the record concerned (a) contains the whole or part of a statement made at a meeting of the Government or information that reveals, or from which may be inferred, the substance of the whole or part of such a statement, and (b) is not a record— (i) referred to in paragraph (a) or (c) of subsection (1), or (ii) by which a decision of the Government is published to the general public by or on behalf of the Government. This section is concerned with the protection of the content of Cabinet discussions or deliberations at Government meetings, as distinct from Government decisions. Article 28.4.3 of the Constitution provides that the confidentiality of discussions at meetings of the Government shall be respected in all circumstances, save in specific cases determined by the High Court. An FOI body relying on section 28(2) for its refusal to grant access to a record must show that the record concerned contains the whole or part of a statement made at a Government meeting or contains information which reveals the substance of the whole or part of such a statement or from which the whole or part of such a statement may be inferred. It is clear from the language of section 28(2)(a) – and in particular the reference to the ‘substance’ of a statement - that it is not directed at the fact of a person having made a statement, but at the content and/or substance of any such statement.
121. Having examined Record 2, I note that it does not detail actual discussions that took place, nor does it contain information that reveals, or from which might be inferred, the substance of the whole or part of any statement that was made at the actual meeting of Government. Record 2 simply states the status of the decision and that comments made by a specific Minister were noted, however it does not describe those comments. Accordingly, I cannot find that section 28(2)(a) of the FOI Act applies to Record 2. As I have found that section 28(2)(a) of the FOI Act does not apply to Record 2, that information cannot be refused under article 8(a)(iv) of the AIE Regulations.
122. I have also considered whether Article 28.4.3 protects the confidentiality of this information. While the decision inAttorney General v Hamilton [1993] 2 I.R. 250 preceded the amendment of the Constitution to insert Article 28.4.3, it nonetheless provides helpful guidance as to the nature of the protection provided by that provision. The Supreme Court identified that the purpose of protection is to allow for“full free and frank discussion between members of the Government prior to the making of decisions”, which necessarily involves“the non-disclosure of different or dissenting views held by members of the Government prior to the making of decisions” (see p.266). This appears to be directed at the same matters as section 28(2)(a) of the FOI Act, namely the content of statements at a meeting of the Government, or information which reveals such content or from which such content may be inferred. Accordingly, for the same reasons as outlined above, I do not consider that the protection outlined in Article 28.4.3 of the Constitution for the confidentiality of discussions at meetings of the Government is relevant to Record 2.
123. For completeness, while section 28(2)(a) of the FOI Act was not relied upon by the Department in refusing access to Records 3 and 4, given that the first part of point 3(iv) of those records refers to the same information as in Record 2, I also wish to confirm that I do not consider that section 28(2)(a) of the FOI Act applies to that information.
124. Having regard to all of the above, I have found section 28 of the FOI Act to apply to the following information:
• Record 1 (Memorandum for Government)
o Section 1: Decision Sought - all information
o Section 2: Background Reason – paragraph 3 in 2.1 and the final sentence in 2.6
o Section 4: Impacts – all information
o Section 5: Cost to Exchequer – all information
o Section 6: Other Relevant Information – the first two sentences of paragraph 2, the majority of paragraph 3 (not the first sentence), and the “Observations” included under this heading
o Section 7: Observations Returned – all information
125. Given that section 28 of the FOI Act applies to the information detailed above, and section 28 of the FOI Act is, in essence, designed to protect the confidentiality of the meetings of the Government, I am satisfied that the confidentiality of the proceedings identified in this case, the Government meeting on 21 July 2021, is protected by law.
Would the disclosure of the information at issue adversely affect the confidentiality of the proceedings?
126. I now must consider whether disclosure of the information to which I have found section 28 of the FOI Act applies would adversely affect the confidentiality of the proceedings in this case, the Government meeting on 21 July 2021.
127. The exemption in article 8(a)(iv) applies only where disclosure“would adversely affect … the confidentiality of the proceedings … where such confidentiality is … protected by law …” . Applying the ordinary meaning of these words, there is an adverse effect where disclosure removes or reduces the legal protection otherwise afforded to such proceedings. As noted above, there must be a clear link between disclosure of the specific information concerned and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
128. While section 28(1)(a) of the FOI Act is a discretionary exemption under the FOI Act, in that public bodies “may” rely on it, it is also neither a harm-based exemption nor an exemption subject to any public interest test. I consider that section 28 of the FOI Act clearly indicates the intention that there is certain information which is required to be protected in order to ensure that meetings of Government can be held in confidence. It therefore follows that disclosing information protected by section 28(1)(a) of the FOI Act will usually adversely affect the confidentiality the relevant proceedings (unless, for example, circumstances arise where the information has otherwise been made public) and this risk of reasonably foreseeable.
129. I also wish to note that, while it may be a relevant consideration, I do not consider that simply because a decision-making process has concluded the confidentiality of the relevant proceedings cannot be undermined by disclosure. In this case, the information concerned is protected by section 28(1)(a) of the FOI Act and in making that finding regard was had to section 28(3)(b), which provides that subsection (1) does not apply if the record relates to a decision of the Government that was made more than five years before the receipt of the request. In circumstances where section 28 of the FOI Act specifically provides for the protection of information for a particular time-period notwithstanding that the proceedings have concluded, I consider that generally the confidentiality of those proceedings remains for that time-period and there is a reasonably foreseeable risk that it will be undermined by the disclosure of information protected by section 28(1)(a) of the FOI Act (again, unless, for example, circumstances arise where the information has otherwise been made public).
130. Finally, while information relating to decision-making processes where SEAs or AAs have been carried out may be published, this does not automatically mean that disclosure of the information at issue in this case is required or that disclosure would not adversely affect the confidentiality of the relevant proceedings.
131. Accordingly, I am of the view that, in general, it is likely that where information is protected by section 28 of the FOI Act, disclosure of the information concerned would adversely affect the confidentiality of the relevant proceedings. However, regard must be had to the particular information at issue and the circumstances of each case. In this case, and regarding Record 1 (Memorandum for Government) and the information contained therein to which I have found section 28(1)(a) of the FOI Act to apply there is no evidence before me to suggest that this information has been made public. I am satisfied that disclosure of this information would adversely affect the confidentiality of the proceedings in this case, the Government Meeting on 21 July 2021. Accordingly, I find that article 8(a)(iv) applies to the information concerned in Record 1.
132. I have found that article 8(a)(iv) of the AIE Regulations applies to the following information in Record 1 (Memorandum for Government):
o Section 1: Decision Sought - all information
o Section 2: Background Reason – paragraph 3 in 2.1 and the final sentence in 2.6
o Section 4: Impacts – all information
o Section 5: Cost to Exchequer – all information
o Section 6: Other Relevant Information – the first two sentences of paragraph 2, the majority of paragraph 3 (not the first sentence), and the “Observations” included under this heading
o Section 7: Observations Returned – all information
133. However, that is not the end of the matter. As noted above, and in addition to article 10(1) of the AIE Regulations, which I have already dealt with above, article 8(a)(iv) of the AIE Regulations must be read alongside articles 10(3), 10(4), and 10(5) of the AIE Regulations (dealt with later in this decision). As indicated above, 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.
134. At this point, I consider it relevant to address the appellant’s submission that I must have regard to the fact that the public interest test has been the subject of detailed discussion by the Supreme Court in The Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors [2020] IESC 57 (Enet) and by the High Court in Industrial Development Agency (Ireland) and the Information Commissioner & Ors [2024] IEHC 649. These cases both considered appeals of decisions of the Information Commissioner under the FOI Act to the Superior Courts. In its judgment in eNet, the Supreme Court held that for the purposes of the FOI Act the general principles of openness and transparency do not provide a sufficient basis for directing the release of otherwise exempt information in the public interest. Rather a “sufficiently specific, cogent and fact based reason” is required to tip the balance in favour of disclosure. I wish to highlight that the Court's comments were made in a case involving commercial sensitivity and confidentiality under the FOI Act and I do not consider them relevant to the application of the public interest test under the AIE Regulations. I reach this view for the following reasons.
135. First, the two tests are different in their terms. Under certain provisions of the FOI Act, the exemption does not apply where “the public interest would, on balance, be better served by granting than by refusing to grant the FOI request”. By contrast, under the AIE regime, “the public authority shall … weigh the public interest served by disclosure against the interest served by refusal”.
136. Second, the regimes derive from different sources (domestic and European) and an authoritative interpretation has been given in respect of each regime by different Courts. In relation to the test in the AIE Regulations, in the first instance the Commissioner must follow the guidance provided by the CJEU in Land Baden-Württemberg, which is: “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 only in a few specific and clearly defined cases. The exceptions to the right of access should, consequently, be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal of disclosure” (paragraph 33). To the extent that it needs further interpretation, the right source is Irish case law relating to the AIE regime. Reliance on eNet, a domestic judgment concerning a domestic regime, would be inconsistent with the principle that the AIE regime must be given an autonomous and uniform interpretation across all member states (Flachglas Torgau, paragraph 37 ).
137. Third, the rationale underpinning the decision in eNet was that the Oireachtas has indicated that the exemptions are appropriate exceptions to the general principle of transparency, such that something must arise from or in respect of the record at issue in order for the balance to be tipped in favour of disclosure. By contrast, the rationale underpinning the AIE regime is that there is a presumption of disclosure so as to protect the environment (see recital 16 of the AIE Directive), subject to the discretion to apply specific exceptions to disclosure in a restrictive way. Given those differences, the text of the eNet judgment cannot be read across to the AIE regime.
138. I turn to assess the public interest test under the AIE Regulations in this case. 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.
139. 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 the confidentiality of proceedings. I am of the view that, in principle, the existence of a domestic or European law for the protection of the confidentiality of proceedings indicates that the Irish or European legislature recognised a public interest in withholding such information. However I accept that the strength of that public interest will depend on the factual matrix of each case. The public interest in maintaining the exemption must arise from the continuing need to protect the confidentiality of the proceedings that would be adversely affected by disclosure.
140. I have already set out the Department’s and the appellant’s positions regarding article 8(a)(iv) and article 10 of the AIE Regulations in this case. While I will not repeat or discuss them in full here, I confirm that I have considered them. Furthermore, while I am required by article 12(5)(b) 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 remaining information at issue in Record 1 and the extent to which I can describe certain matters in my analysis is limited. However, I also confirm that I have examined to the specific information concerned.
141. As previously stated, Record 1 (Memorandum for Government), comprises a proposal requiring a Government decision. The information at issue forms part of that proposal. I am satisfied that its release would provide insight into matters considered by the Government when reaching its decision and there is a public interest in such insight. As stated in considering the definition of environmental information, Food Vision 2030 clearly has an environmental effect. In my view, public access to the records at issue, relating to Government decision-making regarding Food Vision 2030, would generally contribute to the accountability and transparency of that decision-making, contribute to a greater awareness of environmental matters, and strengthen public support for decisions on the environment. Accordingly, it would be in line with the purpose of the Aarhus Convention, as set out in paragraphs 9 and 10 of the Preamble, and the AIE Directive, as set out in Recital 1. There is undoubtedly a need for transparency generally with regard to government decisions relating to the environment, and in this case Food Vision 2030. Furthermore, while I must be careful not to disclose exempt information, I reiterate that the information at issue comprises:
• Section 1: Decision Sought - all information
• Section 2: Background Reason - paragraph 3 in 2.1 and the final sentence in 2.6
• Section 4: Impacts – all information
• Section 5: Cost to Exchequer – all information
• Section 6: Other Relevant Information – the first two sentences of paragraph 2, the majority of paragraph 3 (not the first sentence), and the “Observations” included under this heading
• Section 7: Observations Returned – all information
142. It is clear that the information at issue listed above would give the public a better understanding of matters considered by the Government in reaching its decision.
143. Having regard to the appellant’s submissions to this Office, I wish to reiterate that I have considered to the appellant’s position on the public interest test, which is set out in the “Position of the Parties” section above. I note the factors identified by the appellant in favour of release included, in summary: that Food Vision 2030 had a public participation element, that other files relating to these types of decisions are generally published, that there is a positive obligation on public authorities to publish information such as that requested under Article 7 of the AIE Directive, that Food Vision 2030 is controversial, and criticism of the Government in a recent court case. As explained above, I agree that that there is a public interest in openness and transparency with respect to the Government decision-making regarding Food Vision 2030. However I must also have regard to the fact that access to environmental information is not unlimited. For example, the exceptions in Article 4 of the AIE Directive may apply in relation to the duties imposed by Article 7 of the AIE Directive and while other information relating to decision-making processes where SEAs or AAs have been carried out may be published, this does not automatically mean that the information in this case is subject to disclosure.
144. I am satisfied that the information at issue is information to which I have already found section 28(1)(a) of the FOI Act applies, having considered the exception in section 28(3) of the FOI Act, and there is no evidence before me to suggest that this information has been made public. I have found that disclosure of the information would adversely affect the confidentiality of the proceedings in this case, the Government Meeting on 21 July 2021. Section 28 of the FOI Act creates an expectation of confidence regarding “Meetings of the Government” in certain circumstances (i.e. where the conditions of that provision have been met). As previously stated, the protection under section 28(1)(a) applies to information that has been, or is proposed to be, submitted to the Government for its consideration by a Minister and was created for that purpose, is not factual information relating to a decision of the Government that has been published to the general public, and continues for a specified period of time notwithstanding that the proceedings have concluded. There is a strong public interest in allowing for confidential information sharing in the final stages of a decision-making process and in ensuring that decision-making process is not undermined. In the circumstances of this case, where I have found that the information concerned is protected under section 28 of the FOI Act and the proceedings concerned are confidential, I consider that due weight must be given to the fact that the legislator has provided for such protection.
145. Furthermore, while I note the appellant’s arguments that the Memorandum for Government cannot be protected by Article 28 of the Constitution on the basis that it does not comprise cabinet discussions and it disputes the Department’s reference to Attorney General v Hamilton [1993] 2 I.R. 250, I consider the Memorandum for Government ought to be assessed against the backdrop of Article 28 of the Constitution and Attorney General v. Hamilton [1993] 2 I.R. 250, even if the record itself may not comprise “cabinet discussions”.
146. As noted, Article 28.4.3 of the Constitution provides: “The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter – (i) in the interests of the administration of justice by a Court, or (ii) by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.” I acknowledge that Article 28.4.3 was provided for by the Seventeenth Amendment of the Constitution Act, 1997, subsequent to Attorney General v. Hamilton.
147. However, it is also important to note that Article 28.4.1 of the Constitution provides “The Government shall be responsible to Dáil Éireann” and Article 28.4.2 provides “The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government.”
148. It is clear that the Memorandum for Government was submitted to the Government for its consideration and, as noted, article 28(1)(a) of the FOI Act applies. I am satisfied that there is a significant public interest in Government Ministers having a private space to commit their views in writing for consideration of the Government prior to the reaching of a decision. I think it is relevant to recall the comments of theHigh Court in In the Matter of the Freedom of Information Act 1997 as amended and In the Matter of an Appeal Pursuant to Section 42(1) of that Act between the Minister for Education and Science and the Information Commissioner [2008 , which considered section 19(1)(a) of the FOI Act 1997 (as then in force) that provided for the mandatory refusal of a record if it “has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General, and was created for that purpose…” (now reflected in the discretionary refusal in section 28(1)(a) of the FOI Act 2014). McGovern J commented:
“In Attorney General v Hamilton [1993] 2 I.R. 250 Finlay CJ referred to Articles 28.4.1 and 28.4.2 of the Constitution observing that these Articles ‘impose upon members of the Government separate though clearly related obligations and these are:
(1) They must meet as a collective authority.
(2) They must act as a collective authority.
(3) They must be collectively responsible for all the Departments of State and not merely the one which each of them administers.
(4) They have as a Government a responsibility to Dáil Éireann.’
He went on to state that:
‘That these obligations involve some obvious, necessary, consequential duties:
The first of those relevant to the issues arising in this appeal is the necessity for full, free and frank discussions between the members of the Government prior to the making of decisions, something which would appear to be an inevitable adjunct to the obligation to meet collectively and to act collectively. The obligation to act collectively must, of necessity, involve the making of a single decision on any issue, whether it is arrived at unanimously or by a majority. The obligation to accept collective responsibility for decisions and, presumably, for acts of Government, involves, as a necessity, the non-disclosure of different or dissenting views held by the members of the Government prior to the making of decisions.’
Section 19 of the 1997 Act (as amended) can most readily be understood in the context of that decision.”
149. In the circumstances, I am indeed satisfied that section 28(1)(a) must also be read in the context of Article 28 of the Constitution and Attorney General v Hamilton, and to which I must have appropriate regard in considering the public interest in refusal. Having regard to the above, I consider this to be the correct approach.
150. I have weighed the factors for and against disclosure. In light of all of the above, I am of the view that in this particular case the public interest in the disclosure of the specific information concerned in Record 1 to which I have found article 8(a)(iv) applies, does not outweigh the interest served by refusal. Accordingly, I find, that the Department’s decision to withhold that particular information in Record 1 under article 8(a)(iv) was justified, namely:
o Section 1: Decision Sought - all information
o Section 2: Background Reason - paragraph 3 in 2.1 and the final sentence in 2.6
o Section 4: Impacts – all information
o Section 5: Cost to Exchequer – all information
o Section 6: Other Relevant Information – the first two sentences of paragraph 2, the majority of paragraph 3 (not the first sentence), and the “Observations” included under this heading
o Section 7: Observations Returned – all information
151. The Department refused access to all of the information at issue under both articles 8(a)(iv) and 9(2)(d) of the AIE Regulations. As I have found that article 8(a)(iv) of the AIE Regulations does not apply to some of the information at issue, I will now go on to consider whether the Department was justified in refusing that particular information under article 9(2)(d) of the AIE Regulations, namely:
• Record 1 (Memorandum for Government)
o Section 2: Background Reason - all information, apart from paragraph 3 in 2.1 and the final sentence in 2.6.
o Section 3: Public Announcement - all information
o Section 6: Other Relevant information - all information, apart from the first two sentences of paragraph 2, the majority of paragraph 3 (not the first sentence), and the “Observations” included under this heading.
• Record 2 (ePink)
• Record 3 (Government Decision)
• Record 4 (meeting minute extract)
152. The appellant’s submissions to this Office outline its view that article 9(2)(d) of the AIE Regulations should not be considered at all. I disagree with the appellant’s position. I provided at the outset of the Analysis and Findings section comments of the CJEU in C-84/22 regarding articles 8(a)(iv), 8(b), 9(2)(d), and 10 of the AIE Regulations, I draw attention to them again here.
153. I acknowledge and accept the comments of the CJEU that article 8(a)(iv) and 9(2)(d) of the AIE Regulations cannot be applied cumulatively (paragraph 46). I also note that in C-84/22 the CJEU commented that “subject to matters to be determined by the referring court, it cannot be ruled out that in this instance, both the conditions for applying [the internal communications exemption and the proceedings of public authorities exemption] are satisfied” (paragraph 45) . It then went on to note that the “proceedings of public authorities” exemption is lex specialis and “[t]hus, if the conditions for applying the more specific exception laid down in respect of the ‘proceedings of public authorities’ are in fact satisfied, the application of that exception takes precedence over that of the exception relating to internal communications, which is more general in scope” (paragraph 47). It further stated “[s]pecifically, in addition to the conditions for applying the latter exception, namely, in essence, the transmission of information exclusively within the internal sphere of a public authority, the exception in respect of the ‘proceedings of public authorities’ applies only where the exchange of information takes place in the course of the final stage of a decision-making process which is clearly defined as ‘proceedings’ and the confidentiality of which is provided for by law” (paragraph 48). It also explained that the two exemptions correspond to two separate legal regimes (paragraph 49).
154. I understand the appellant’s view to be that public authorities are prevented from applying article 9(2)(d) to information relating the “proceedings of a public authority” at all (i.e. once an internal communication becomes part of the final decision-making process, article 9(2)(d) ceases to be available). However, I do not consider this to be the case. In my view, public authorities are prevented from relying on article 9(2)(d) in respect of information to which the exception for “proceedings of a public authority” applies (i.e. once the exception in article 8(a)(iv) applies, article 9(2)(d) ceases to be available).
155. I have reached this view having examined the comments of the CJEU, noting the following in particular:
• The judgment specifically acknowledges that both 8(a)(iv) and 9(2)(d) were potentially applicable in the facts in that case. This acknowledgement is not consistent with the proposition that 9(2)(d) is no longer available from the point at which the final decision-making process begins.
• The judgment refers repeatedly to “the conditions for applying the exception” in article 8(a)(iv) (paragraphs 45, 47 and 48). The Court goes on to state that the “application of that exception” [8(a)(iv)] takes precedence over that [the application] of the exception relating to internal communications” (paragraph 47). The Court expressly indicates that 9(2)(d) may apply where “the exception in [8(a)(iv)] is not applicable” (paragraph 56, see also paragraph 53). These references to the application of each exception indicate that the hierarchy in respect of the two exceptions only operates when the exception under 8(a)(iv) is actually applicable. If the exception under 8(a)(iv) is not actually applicable, then no question of hierarchy arises. This leads to the conclusion that it is the applicability of the exception in 8(a)(iv) that operates to exclude 9(2)(d), and not the fact that the final decision-making process has commenced.
• The Court points to the ‘precise and limited’ nature of the exception in 8(a)(iv) (paragraph 51), in contrast to the ‘broad’ nature of the exception in 9(2)(d) (paragraph 50). If the potential to apply a precise and limited exception (rather than its actual application) could operate to exclude the application of a broad exception, I would expect the CJEU to have said so in such terms. For example, the CJEU could have indicated in paragraph 50 that while 9(2)(d) has a broad scope, that scope is not sufficiently broad to encompass any of the final decision-making process of public authorities.
• It is clear that the Court’s conclusion on the hierarchy was primarily driven by the need to prevent public authorities avoiding the operation of the ‘emissions override’ (paragraph 52).
156. I have found above that the exemption in article 8(a)(iv) applies to certain specified information in the records. It is the remaining information, to which I have found that article 8(a)(iv) does not apply, that I am considering under article 9(2)(d) of the AIE Regulations. Accordingly, I am satisfied that I am not applying articles 8(a)(iv) and 9(2)(d) of the AIE regulations cumulatively to the same information. In circumstances where I am satisfied that the lex specialis (article 8(a)(iv) of the AIE Regulations) does not apply to the information, I do not consider it incorrect to then examine the lex generalis (article 9(2)(d) of the AIE Regulations).
157. Finally, I also wish to note that it is my position that while “confidentiality ” may be a relevant consideration, it is not a pre-requisite to the “internal” element of article 9(2)(d) of the AIE Regulations. I discuss this in further detail below, however, I am satisfied that once information is determined to be an internal communication that is enough to engage the exemption in article 9(2)(d) and a further analysis of the confidentiality / sensitivity of the information is then to be carried out in the public interest balancing test indicated in the exemption itself and required by article 10 of the AIE Regulations.
158. Having regard to all of the above, I will now continue my examination of whether the Department was justified in refusing access to the information detailed at the outset of this section under article 9(2)(d) of the AIE Regulations.
159. As stated, 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.
160. 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. As indicated above, 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.
161. 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.
162. The term “internal communications ” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the decision of the CJEU in Land Baden-Württemberg, provides some guidance on the internal communications exception.
163. The CJEU noted that the term “communication ”, 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).
164. The CJEU also noted that not all environmental information held by a public authority is necessarily “internal ” and “[t]hat is so only in the case of information which does not leave the internal sphere of a public authority in particular when it has not been disclosed to a third party or been made available to the public” (paragraph 42). It further commented that “[w]here a public authority holds environmental information that it has received from an external source, that information may also be “internal” if it was not or should not have been made available to the public before that authority received it and it does not leave that authority’s internal sphere after it received it” (paragraph 43). The CJEU stated that such an interpretation of the word “internal” is supported by the objective pursued by the internal communications exception, namely 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).
165. The CJEU highlighted that the exceptions to the right of access to environmental information should be interpreted restrictively, in such a way that the public interest served by disclosure is weighed against the interest served by the refusal of disclosure. However, it noted that this rule of interpretation cannot limit the scope of an exception in disregard of its wording (paragraph 48). It further stated at paragraphs 49 and 50:
“It follows that the fact that an item of environmental information may be liable to leave the internal sphere of a public authority at a given time, inter alia where it is intended to be published in the future, cannot cause the communication that contains it to cease immediately to be internal in nature."
Furthermore, there is nothing in the wording of Article 4(1)(e) of [the AIE Directive] to suggest that the term ‘internal communications’ should be interpreted as covering only the personal opinions of a public authority’s staff and essential documents or as not including information of a factual nature. Such limitations would, moreover, be incompatible with that provision’s objective, namely the creation, for public authorities, of a protected space in order to engage in reflection and to pursue internal discussions.”
166. The CJEU also stated that the exception is not linked to the development or drawing up of documents, nor does it depend on the extent to which some administrative process has progressed. It stated that the end of such a process or of a stage thereof, marked by the adoption of a decision by a public authority or by the completion of a document, cannot, therefore, be a deciding factor for the applicability of the exception (see paragraph 56).
167. The CJEU held 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” (paragraph 53) 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” (paragraph 70)
168. The CJEU noted that the lack of temporal limitation of the scope of the internal communications exception tallies with the objective to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions (paragraph 57). It commented that, as the Advocate General observed in his Opinion, “in order to determine whether the need to protect the freedom of thought of the people behind the communication concerned and the ability to exchange views freely continues to exist, account should be taken of all the factual and legal circumstances of the case on the data on which the competent authorities have to take a decision on the case which has been made to them, since, …, the right of access to environmental information crystallises on that date.” (paragraph 57).
169. The CJEU went on to reiterate that “whilst it is true that the exception provided for in Article 4(1)(e) of the [AIE Directive] is not limited in time, it is apparent, however, from that provision itself and the second subparagraph of Article 4(2) of the [AIE Directive] that refusal of access to environmental information on the ground that it is included in an internal communication must always be founded on a weighing of the interests involved” (paragraph 58).
170. The CJEU noted that the interests must be weighed on the basis of an actual and specific examination of each situation brought before the competent authorities in connection with a request for access to environmental information (paragraph 59). The CJEU held that in the case of the “internal communications” exception, that examination is especially important since the material scope of the exception is particularly broad and in order not to render the AIE Directive meaningless, the weighing of the interests that “is required in Article 4(1)(e) and the second subparagraph of Article 4(2) of [the AIE Directive] must be tightly controlled” (paragraph 60).
171. The CJEU outlined that it is apparent from Recital 1 of the AIE Directive that the reasons which may support disclosure and which a public authority must take into account when weighing the interests involve include bringing about “a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and…a better environment” (paragraph 62). It also stated that since the examination of a request must take account of the specific interests involved in each particular case, the public authority is required to examine any particulars provided by a requester as to the ground that may justify disclosure of the information sought (paragraph 63). Furthermore, the CJEU commented that public authorities must take into account the time that has passed since the internal communication and the information that it contains were drawn up; the exception can apply only for the period during which protection is justified in the light of the content of such a communication (paragraph 64). It stated:
“In particular, if, in the light of the objective of creating for public authorities, a protected space in order to engage in reflection and to pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up…” (paragraph 65).
172. Finally, as already noted, the CJEU stated at paragraph 69: “…[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. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical”.
173. As previously indicated, 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 refusal, as is required by the exception itself and articles 10(3) and (4) of the AIE Regulations.
174. Further to the detail regarding “internal communications” put forward by the CJEU in Land Baden-Württemberg (C-619/19) set out above, I note that in C-84/22, the CJEU commented that “The concept of a ‘public authority’ is defined in Article 2(2) of Directive 2003/4. It means, inter alia, ‘government’ and ‘other public administration’” (paragraph 40) and in respect of the records relevant to that case noted “the request for access relates to records of government discussions which, according to the information available to the Court, are, in principle, capable of falling within the concept of ‘internal communications’….in the first place, such records reflect information exchanged between members of an administration and therefore of a ‘public authority’; in the second place, in so far as they are distributed within that administration, they involve ‘communications’; and, in the third and last place, in view of their confidential nature as provided for under point 3 of Article 28(4) of the Constitution of Ireland, those records are not intended to be disclosed to the public and therefore retain their ‘internal’ character.” (paragraph 41).
175. Record 1 is a Memorandum for Government, comprising a proposal for Government requiring a Government decision – the remaining information forms part of that proposal; Record 2 is an ePink, containing “points of note ” and “item status ”; Record 3 is a Government Decision and Record 4 is an extract of minutes of a Government meeting. While I note the appellant’s argument regarding Record 1 that it is not an internal communication as it has left the internal sphere of the Department, “[i]n the case of a memorandum for government, it has left the internal sphere of the relevant department once it is submitted to the cabinet ” I do not agree, noting that I consider that the “public authority ” in this instance is the “government ” (i.e. members of an administration) and that Record 1 is a Government record, being a Memorandum for Government prepared by the Minister for Agriculture, Food and the Marine, a member of the Government, for consideration by other members of Government (i.e. it was addressed by the Minister, a member of the Government, to the Government and it was exchanged and distributed within that administration). I also do not agree with the appellant’s position that Records 2, 3, and 4 are not “internal communications ”, given that they outline what occurred at the Government meeting (i.e. they record information that was exchanged and distributed within that administration) and appear on their face to have been circulated only within that administration.
176. As indicated, I am satisfied that all of the remaining information at issue can reasonably be described as reflecting information exchanged between members of an administration (the Government) and distributed within that administration (the Government). Other than for litigation purposes (discussed further below in the context of the public interest test, there is no evidence to suggest that any of the information has left the Government’s internal sphere. In light of the appellant’s submissions, I wish to note that while I accept that in C-84/22, the Court referred to the “confidential nature ” of the information, I consider that this was in support of, but not required for, an argument that the records in that case were not intended to be disclosed to the public and therefore retained their “internal ” character. As stated above, while “confidentiality ” may be a relevant consideration, I do not consider “confidentiality” to be a pre-requisite to the “internal” nature of the information, indeed there is no evidence of this in C-619/19 which was referred to in C-84/24. The “confidentiality ” of the information is more appropriately considered in the application of the public interest test, which I am satisfied I have done below.
177. Accordingly, I am satisfied that all of the remaining information at issue is an “internal communication ” within the meaning of the definition set out by the CJEU in Land Baden-Württemberg, reiterated and added to in C-84/22, and article 9(2)(d) of the AIE Regulations is engaged.
178. While I have found all of the remaining information at issue to be an “internal communication ”, that is not the end of the matter. As noted above, when applying article 9(2)(d) of the AIE Regulations, it is necessary 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.
179. 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.
180. 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 ”. This was referred to by the CJEU in Land 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).
181. As noted above, the CJEU in Land Baden-Württemberg outlined that there is no temporal limitation on the operation of the exception regarding internal communications (see paragraphs 54 to 57). The CJEU further highlighted that as the exception is potentially very wide, the public interest balancing exercise required must be tightly controlled (paragraph 60). The interests involved must be weighed on the basis of an actual and specific examination of each situation brought before the public authority and myself on appeal (paragraph 59). Despite there being no temporal limit on the operation of the exemption, the CJEU introduced the question of the age of information into the balancing exercise. It noted that public authorities to which a request for access to environmental information in an internal communication has been made must take into account the time that has passed since that communication and the information that it contains were drawn up and that the exception can apply only for the period during which protection is justified in the light of the content of such a communication. It further commented:
“In particular, if, in the light of the objective of creating, for public authorities, a protected space in order to engage in reflection and to pursue internal discussions, information contained in an internal communication could properly not be disclosed on the date of the request for access, a public authority may, on the other hand, be led to take the view that, on account of its age, the information has become historical and that it is accordingly no longer sensitive, where some time has passed since it was drawn up (see, by analogy, judgment of 19 June 2018, Baumeister, C-15/16, EU:C:2018:464, paragraph 54)” (paragraph 65).
182. I have already set out the Department’s and the appellant’s positions regarding article 9(2)(d) and article 10 of the AIE Regulations in this case. 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 remaining information at issue and the extent to which I can describe certain matters in my analysis is limited.
183. I have noted above that Food Vision 2030 clearly has an environmental effect. In my view, public access to the records at issue, relating to Government decision-making regarding Food Vision 2030, would contribute to the accountability and transparency of that decision-making, contribute to a greater awareness of environmental matters, and strengthen public support for decisions on the environment. Accordingly, it would be in line with the purpose of the Aarhus Convention, as set out in paragraphs 9 and 10 of the Preamble, and the AIE Directive, as set out in Recital 1. There is undoubtedly public interest in transparency with regard to government decisions relating to the environment and in this case Food Vision 2030.
184. As previously stated, Record 1 (Memorandum for Government), comprises a proposal for Government requiring a Government decision, the remaining information at issue forms part of that proposal. Having examined the information, I am satisfied that its release would provide insight into matters considered by the Government when reaching its decision and there is a public interest in such insight. I am also satisfied that the remaining information at issue is information to which I have already found section 28(1)(a) of the FOI Act does not apply by reason of section 28(3)(a) of the FOI Act, on the basis that the information is factual information relating to a decision of the Government that has been published to the general public.
185. Record 2 (ePink), includes “points of note ” and “item status ” It is a very brief record of what occurred at the Government Meeting of 21 July 2021. Having examined the information, I am satisfied that its release would provide insight into matters considered by the Government when reaching its decision and how it made its decision, and there is a public interest in such insight. As noted, Record 2 simply states the status of the decision and that comments made by a specific minister were noted, however it does not describe those comments. It is information to which I have already found that section 28(2)(a) of the FOI Act does not apply on the basis that it does not detail actual discussions that took place, nor does it contain information that reveals, or from which might be inferred the substance of the whole or part of any statement that was made at the actual meeting of Government. For the same reasons, I have also already found that I do not consider it to be information that is afforded the protection in Article 28.4.3 of the Constitution.
186. Record 3 is a Government Decision and Record 4 is an extract of minute of Government – both records remain at issue. Having examined the information, I am again satisfied that it would provide insight into matters considered by the Government when reaching its decision and how it made its decision, and there is a public interest in such insight. I am also satisfied that the information in Records 3 and 4 is information to which I have already found section 28(1)(b) of the FOI Act does not apply by reason of section 28(3)(a) of the FOI Act, on the basis that the information is factual information relating to a decision of the Government that has been published to the general public.
187. It must be noted that the exception provided for in article 9(2)(d) of the AIE Regulations is designed to protect the “private thinking space ” of public authorities. I am also fully cognisant of the decision in Attorney General v Hamilton (discussed above) and that Article 28.4.1 of the Constitution provides “The Government shall be responsible to Dáil Éireann ”, Article 28.4.2 provides “The Government shall meet and act as a collective authority, and shall be collectively responsible for the Departments of State administered by the members of the Government ”, and Article 28.4.3 provides:
“The confidentiality of discussions at meetings of the Government shall be respected in all circumstances save only where the High Court determines that disclosure should be made in respect of a particular matter – (i) in the interests of the administration of justice by a Court, or (ii) by virtue of an overriding public interest, pursuant to an application in that behalf by a tribunal appointed by the Government or a Minister of the Government on the authority of the Houses of the Oireachtas to inquire into a matter stated by them to be of public importance.”
188. I accept that there is a strong public interest in protecting the space required by Government to think in private, engage in reflection, pursue free and frank discussions, and develop its views regarding a proposal and reaching decisions generally. However, having examined the information at issue and given the particular factual circumstances of this case, including where I have found that the FOI Act and/or the Constitution are not relevant, I cannot see how release of the remaining information at issue would undermine the private thinking space of the Government to the extent that it should be considered to outweigh the public interest in disclosure.
189. For the sake of completeness, regarding Records 3 and 4, I also wish to recall that during the course of this review, the appellant indicated to this Office that a document described as “Government Decision” was introduced by the Department by way of an exhibit to an affidavit into related judicial review proceedings (In the Matter of Friends of the Irish Environment Ltd and The Government of Ireland, the Minister for Agriculture Food and the Marine, Ireland and the Attorney General). The appellant provided this Office with a copy of the document and the affidavit, which stated that the document was being made available in the judicial review proceedings by the Department without prejudice to its view that it was not releasable under the AIE Regulations. The decision of Humphreys J acknowledged that a decision by this Office under the AIE Regulations was pending in respect of the Government Decision.
190. I am satisfied that the document provided by the appellant to this Office and exhibited by way of the Department’s affidavit in the related judicial review proceedings is Record 3 (Government Decision). As previously explained, the substantive detail of the records is the same. While I note the Department’s position, including that “the disclosure of a document to the Courts in the context of litigation does not impact on the facts of this appeal and therefore should not be a factor in [this] decision,” and appreciate that it was after the AIE decision-making process that the “Government Decision ” was introduced by the Department by way of an exhibit to an affidavit dated 21 June 2022 into the related judicial review proceedings without prejudice to its view that it was not releasable under AIE, I must have regard to those circumstances in considering the public interest balancing test at the date of this decision. I note that a transcript of the hearing in the related judicial review proceedings is available here (on the appellant’s website). It is clear from the content of the transcript that the substantive content of Record 3 and, therefore, Record 4, was read out in court. I have no reason to doubt that the judicial review proceedings were held in public. Where the substantive detail of Records 3 and 4 has been disclosed in court to the public, this further supports my finding above that it is not evident how the release of that information would undermine the private thinking space of the Government to the extent that it should be considered to outweigh the public interest in disclosure.
191. Accordingly, I direct release of the remaining information at issue; as follows:
• Record 1 (Memorandum for Government)
o Section 2: Background Reason - all information, apart from paragraph 3 in 2.1 and the final sentence in 2.6.
o Section 3: Public Announcement - all information
o Section 6: Other Relevant information - all information, apart from the first two sentences of paragraph 2, the majority of paragraph 3 (not the first sentence), and the “Observations” included under this heading.
• Record 2 (ePink)
• Record 3 (Government Decision)
• Record 4 (meeting minute extract)
192. As outlined above, 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.
193. I have found that article 8(a)(iv) of the AIE Regulations applies in respect of certain information contained in Record 1. I have also found that neither article 8(a)(iv) nor 9(2)(d) applies in respect of the remaining information in Record 1 or any information in Records 2, 3, and 4.
194. In accordance with article 10(5), I am satisfied that partial disclosure of Record 1 is possible. Records 2, 3, and 4 are to be released in full.
195. Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary the Department’s decision. I annul its decision that the four records at issue are not environmental information. I affirm its decision under article 8(a)(iv) of the AIE Regulations to refuse access to certain information in Record 1, as follows:
• Record 1 (Memorandum for Government):
o Section 1: Decision Sought - all information
o Section 2: Background Reason – paragraph 3 in 2.1 and the final sentence in 2.6
o Section 4: Impacts – all information
o Section 5: Cost to Exchequer – all information
o Section 6: Other Relevant Information – the first two sentences of paragraph 2, the majority of paragraph 3 (not the first sentence), and the “Observations” included under this heading
o Section 7: Observations Returned – all information
196. I annul its decision under articles 8(a)(iv) and 9(2)(d) of the AIE Regulations in respect of the remaining information in Record 1 and Records 2, 3, and 4, and direct its release.
197. 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