Decision
Mr X and Coillte
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143973-C3S7V1
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-143973-C3S7V1
Published on
Whether Coillte was justified, under articles 9(2)(c) and 9(2)(d) of the AIE Regulations, in refusing access to a property acquisition form.
17 December 2024
1. On 14 September 2023, the appellant submitted a request to Coillte seeking access to:
(1) A copy of the application and supporting information for CN92945, including the date on which it was submitted to DAFM
(2) Information related to the acquisition of the lands which are intended to be afforested under CN92945, including; a) internal and external correspondence b) details of site visits and site reports
(3) Engagement with DAFM relating to CN92945
(4) Information on the erection of the Site Notices for CN92945 including; a) The party responsible (job description, role) for the erection of the Notices b) Evidence of the actual date on which the Notices were erected c) Evidence that the Notices have been maintained in position on the land concerned and where relevant have been renewed or replaced if they have been removed or become defaced or illegible.
2. On 12 October 2023, Coillte issued its decision. In respect of Part 1 of the appellant’s request, it referred to article 7(3)(a)(ii) of the AIE Regulations and directed the appellant to information available on the Department of Agriculture, Food and the Marine’s (the Department’s) Forestry Licence Viewer (FLV). In respect of Part 2, it noted that it had identified one relevant record, the property acquisition form, and was refusing access to that record under article 9(2)(c) of the AIE Regulations. In respect of Parts 3, 4(b), and 4(c), Coillte stated that it was refusing access to the information sought under article 7(5) of the AIE Regulations on the basis that no relevant information was located. In respect of Part 4(a), Coillte noted that “the party responsible for the erection of the notices is Coillte CGA.”
3. Also on 12 October 2023, the appellant sought an internal review of Coillte’s decision. On 10 November 2023, Coillte issued its internal review decision, wherein it affirmed its original decision.
4. On 17 November 2023, the appellant submitted an appeal to this Office, outlining that it specifically related to Part 2 of his request.
5. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between Coillte and the appellant, as outlined above, and to the submissions and evidence provided to this Office by both Coillte and the appellant on the matter. I have examined the record at issue. In addition, I have had regard to:
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (the Minister’s Guidance);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention); and
• The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (the Aarhus Guide)
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. In accordance with article 12(5) of the AIE Regulations, my role 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.
8. As noted above, the appellant in his statement of appeal to this Office specifically referred to Coillte’s refusal of Part 2 of his request. In his submissions to this Office he referred to Coillte’s refusal of the property acquisition form under article 9(2)(c) of the AIE Regulations, however he also referred to his view that further relevant records other than the property acquisition form should exist. Coillte, in its original decision, identified one record relevant to Part 2 of the appellant’s request, the property acquisition form, and refused access to that record under article 9(2)(c) of the AIE Regulations. By way of his internal review request, the appellant simply sought an internal review of Coillte’s decision and made no reference to his view that further relevant records other than the property acquisition form should exist. A review by this Office is limited in scope by the appellant’s internal review request and, while it can be narrowed further, it generally cannot be expanded. Accordingly, while the appellant indicated in his submissions to this Office that he was seeking access to additional information relevant to Part 2 of his request, other than that identified and refused at original and internal review decision, this appeal will only consider Coillte’s refusal of the property acquisition form under article 9 of the AIE Regulations. Should the appellant be seeking access to further information relevant to Part 2 of his request, it is open to him to make a fresh request to Coillte for that information.
9. During the course of this review, the appellant confirmed that he was not seeking access to vendor name, address and contact details.
10. The scope of this review is concerned with whether Coillte was justified, under articles 9(2)(c) and 9(2)(d) of the AIE Regulations, in refusing access to the property acquisition form.
11. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law at the time of this decision. Accordingly, I consider it appropriate to examine the applicability of the additional exemption cited by Coillte in its submissions to this Office, article 9(2)(d) of the AIE Regulations, notwithstanding the fact that the provision was not originally relied upon by Coillte in its internal review decision.
12. 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.
Appellant’s Position
13. The general thrust of the appellant’s position is that Coillte’s decision under article 9(2)(c) of the AIE Regulations is not justified. His submissions to this Office included the following comments:
“Article 9 (2) (c) is a discretionary basis for refusal; the presumption is in favour of release. Coillte needs to make an over-riding public interest argument to refuse the information requested which has been identified. I do not consider the argument below presents an over-riding case for refusing the information.
‘However, in the present case, I believe that the factors in favor of refusing access far outweigh those in favor of granting access. I consider there to be a strong public interest in affording public authorities the space necessary to produce documentation that related to on-going and incomplete processes, this will inevitably produce better outcomes for the public at large.’
This is a generic reason not a case specific reason. I fail to see how the release of an incomplete form would compromise the public interest. The statement that refusal will inevitably produce a better outcome is an unsubstantiated assertion. It is not an over-riding argument to validate refusal in the public interest. In my view Coillte has failed to make a compelling argument for the withholding of the identified record.”
Coillte Position
14. In its original and internal review decisions, Coillte made the following comments regarding its refusal of the property acquisition form under article 9(2)(c) of the AIE Regulations:
a. Coillte stated that the record at issue is not up-to-date and is in the form of unfinished documents or data.
b. Coillte stated that once the process which this document relates to is complete the report containing the requested information can be made available.
c. Coillte stated that, in accordance with article 10(6) it is the authority responsible for the material and “the estimated time needed for completion is approximately 9 months, i.e. the requested information can be provided at that stage. Please note this timeline is subject to change.”
15. In its internal review decision, Coillte also made the following comments regarding articles 10(3) and 10(4) of the AIE regulations:
a. Coillte stated that it had weighed the public interest served by disclosure against the interest served by refusal of the request.
b. Coillte stated that the public interest served by disclosure would be openness and transparency. Coillte noted that, in this regard it “makes as much information as possible available through its public files, its website and through the [Department’s FLV].” Coillte stated that once the process to which the document relates is complete the report containing the requested information can be made available. Coillte also noted the public interest served by individuals being able to exercise their rights under the AIE Regulations to the greatest possible extent, in order to gain access to environmental information. Finally, Coillte stated that it considered the public interest served by environmental information being made available and shared with the public in order to achieve the widest possible systematic availability of environmental information.
c. Coillte stated that in the present case, it believed that the factors in favour of refusing access far outweigh those in favour of granting access. It stated that it considered there to be a strong public interest in affording public authorities the space necessary to produce documentation that relates to ongoing and incomplete processes, as this will inevitably produce better outcomes for the public at large.
d. Coillte submitted that while the aims of the AIE regime include information-access and informed participation in decision-making etc. and while it is generally in the public interest to make available environmental information that will facilitate this, it is also the case that particularly, in a regulatory context where there are ongoing processes, and where the regulatory system is itself designed to protect the environment and to enforce environment-facing laws, there are significant countervailing public interest considerations that can serve to lead to the reasonable conclusion that the public interest in release, or release at this point, of the information sought would not serve the public interest as well as non-disclosure would. Coillte stated that, in all the circumstances, it did not believe that the balance of legitimate public interests weighs in favour of disclosure of the requested information.
16. In its submissions to this Office dated 6 February 2024, Coillte provided further details regarding its reliance on article 9(2)(c) of the AIE Regulations:
a. Coillte noted that the record at issue comprised a property acquisition form on the proposed acquisition of lands the subject of afforestation application CN92945 to the Department under a Form 1 procedure. Coillte stated that the property acquisition form contains details of the proposed acquisition and related afforestation application to the Department together with observations, opinions, and strategies of Coillte staff involved at various stages of the acquisition and afforestation. It stated that the form is updated as the transaction and application progresses.
b. Coillte stated that the form concerns an unfinished document and unfinished data.
c. Coillte stated that the reason that the form is considered unfinished, and deemed to contain unfinished data, is because the proposed acquisition of the subject lands is conditional upon (a) receipt of afforestation consent from DAFM and (b) that any conditions attached are not materially onerous than anticipated by Coillte. Coillte stated that the internal approval to purchase the subject lands for afforestation purposes is conditional. Coillte noted that a final internal approval may be required if the conditions attached to an afforestation licence, which may be granted, are more restrictive than envisaged. Coillte noted that the afforestation licence application concerned remains pending with the Department.
d. Coillte noted that in considering article 10(6) of the AIE Regulations at internal review, the estimated time required to complete the form was nine months. Coillte submitted that after the estimated period for completion of the document, the appellant should make a new request for environmental information to Coillte under the AIE Regulations. It stated that once the property acquisition process is complete or, in circumstances where the acquisition does not proceed and the form is closed, that finished document can be disclosed.
17. Coillte also provided submissions regarding its reliance on article 9(2)(d) of the AIE Regulations:
a. Coillte stated that the form contains internal communications of Coillte staff involved at various stages of the property acquisition process and afforestation application.
b. Coillte contended that the form contains and/or reflects strategic considerations and opinions of a confidential and commercially sensitive nature relating to the proposed acquisition of the subject lands and the ongoing afforestation application.
c. Coillte stated that the record reflects factors that are conditional upon the outcome of the afforestation application which remains pending with the Department.
d. Coillte stated that the communications recorded in the form are internal in all respects and they have not left the internal sphere of Coillte nor is it intended that they will regardless of the outcome of the transaction.
e. Coillte stated that the form is a document that is updated by relevant Coillte staff as matters progress with the transaction and afforestation application
f. Coillte submitted that article 9(2)(d) is intended to facilitate full, free, and frank discussions internally prior to the making of decisions and the opening up of these communications to the public may cause harm to Coillte’s ability to conduct such transactions effectively. Coillte stated that it is reasonably foreseeable that the information contained in the form could be used by a third party in making a submission to the Department on the afforestation application. Coillte stated that while the document is in unfinished form and the property acquisition process is ongoing, it must protect its right to a private thinking space to consider the merits or otherwise of proceeding with the proposed purchase and consequent afforestation of lands.
18. Additionally, Coillte provided details regarding consideration of articles 10(3) and 10(4) in relying on articles 9(2)(c) and 9(2)(d) of the AIE Regulations, which it stated were additional to its comments in its internal review decision (see above):
a. Coillte stated that the form is not a record which Coillte is required to place in the public domain, and it does not contain information to which the public would generally have access. Coillte contended that information that has been deemed relevant by the Department is published online on the FLV along with the Form 1 afforestation application with the consequent right of any member of the public to make observations or submissions to the Department on the application. Coillte submitted that the form does not add anything to public participation in an afforestation application. Coillte also noted its view that the information contained in the form does not enhance its mandate of sustainability.
b. Coillte reiterated the comments in the internal review decision referred to above and that the balance of legitimate public interests does not weigh in favour of the disclosure of the form.
19. Having considered Coillte’s decisions and submissions to this Office and in light of the provisions being relied upon and the fact that a review by this Office is de novo, which means that it is based on the circumstances and the law at the time of this decision, the Investigator wrote to Coillte for further clarification on 23 September 2024. She asked Coillte to respond to the following queries:
a. “…in the original decision dated 12 October 2023, Coillte indicated that the estimated time needed for completion of the [form] was 9 months, although this timeline was subject to change. Please clarify whether the [form] is now complete, if not, please provide a revised estimated time needed for completion.
b. Please clarify whether the [form] provided to this Office has since been amended/worked on or if it will continue to be amended/worked on.
c. Is the relevant afforestation licence application process ongoing? Is there an estimated timeframe for when this will be complete?
d. Please clarify whether a decision whether or not to purchase the subject lands has been made. Is the relevant property acquisition process ongoing? Is there an estimated timeframe for when this will be complete?
e. If Coillte remains of the view that the [form] is not complete, please confirm whether Coillte continues to rely on articles 9(2)(c) and 9(2)(d) of the AIE Regulations, both of which are subject to article 10 of the AIE Regulations, to refuse access, as set out in its decisions and previous submissions to this Office (which will be taken into account).
f. …Coillte indicated that once the form is complete, “the requested information can be provided at that stage”. Please clarify whether, if it were the case that the [form] was considered to be complete, Coillte would not rely on either article 9(2)(c) or 9(2)(d), both of which are subject to article 10 of the AIE Regulations, to refuse access.”
20. No response has been received from Coillte, which is unfortunate. However, I note that the forestry application to which the property acquisition form relates remains pending on the FLV.
21. Coillte is refusing access to the property acquisition form at issue under articles 9(2)(c) and 9(2)(d) of the AIE Regulations.
Article 9(2)(c)
22. Article 9(2)(c) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. This provision transposes Article 4(1)(d) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention. This exemption is not harm-based. It is not necessary for the public authority to show that there is any adverse effect in respect of the release of the information at issue to engage the exception, just that the information concerns material in the course of completion, or unfinished documents or data, although, as noted below, there is still a requirement to then consider the public interest.
23. Article 9(2)(c) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. 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. Article 10(6) of the AIE Regulations states that where a request is refused pursuant to article 9(2)(c) because it concerns material in the course of completion, the public authority shall inform the applicant of the name of the authority preparing the material and the estimated time needed for completion.
24. When relying on article 9(2)(c) of the AIE Regulations, the public authority should explain why the information at issue falls within the scope of the exception, outlining which limb(s) of the exception is being relied upon. 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 articles 10(3) and 10(4). I note the comments of the CJEU in Case C-619/19, Land Baden-Württemberg v DR (Land Baden-Württemberg):
“…[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.” (paragraph 69)
25. The terms “material in the course of completion” and “unfinished documents or data” are not defined in the AIE Regulations, AIE Directive, or the Aarhus Convention. However, the decisions of the CJEU in Land Baden-Württemberg, and Case C-234/22, Roheline Kogukond MTÜ and Others v Keskkonnaagentuur (Roheline Kogukond MTÜ), provide some guidance on the exception.
26. While Land Baden-Württemberg more specifically concerned the internal communications exception (discussed in further detail below), the Court indicated that both the internal communications exception and the exception concerning material in the course of completion and unfinished documents or data are “intended to meet the need of public authorities to have a protected space in order to engage in reflection and to pursue internal discussions” (see paragraph 44).
27. In Roheline Kogukond MTÜ, which dealt with the question as to whether data on the location of permanent sample plots for a statistical forest inventory were to be classified as material in the course of completion or unfinished documents or data, the Court referred to the decision in Land Baden-Württemberg. In considering the material in the course of completion and unfinished documents or data exception, it noted at paragraphs 37 to 41:
“The referring court asks, in the first place, whether disclosure of the coordinates for the location of the permanent sample plots used for the periodic collection of data with a view to drawing up a national statistical forest inventory may be refused on the basis of point (d) of the first subparagraph of Article 4(1) of Directive 2003/4, which allows Member States to refuse a request for environmental information relating to documents in the course of completion or to unfinished documents or data.
Although the concepts of ‘material in the course of completion’ and ‘unfinished documents or data’ are not defined by [the AIE Directive], it is apparent from the explanations relating to Article 4 of the Proposal for a Directive of the European Parliament and of the Council on public access to environmental information presented by the Commission on 29 June 2000 (COM(2000) 402 final) (OJ 2000 C 337 E, p. 156) that the purpose of that exception is to meet the need of the public authorities to have a protected space in which to pursue internal considerations and debates (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 44). The Court has also held that, unlike the ground for refusing access provided for in point (e) of the first subparagraph of Article 4(1) of Directive 2003/4 relating to internal communications, that provided for in point (d) of the first subparagraph of Article 4(1) of the directive relates to the preparation or drafting of documents and is therefore of a temporary nature (see, to that effect, judgment of 20 January 2021, Land Baden-Württemberg (Internal communications), C-619/19, EU:C:2021:35, paragraph 56).
That interpretation is corroborated by that of Article 4(3)(c) of the Aarhus Convention, which provides for an exception to the right of access to environmental information in relation to documents in the course of completion, and by the explanations contained in the document entitled The Aarhus Convention: An implementation guide (second edition, 2014) published by the United Nations Economic Commission for Europe, which, although it has no normative value, is one of the elements that may guide the interpretation of that convention (see, to that effect, judgment of 16 February 2012, Solvay and Others, C-182/10, EU:C:2012:82, paragraph 27).
The location coordinates of permanent sample plots used for the collection of data for drawing up a national statistical forest inventory cannot be regarded as documents in the course of completion or as unfinished documents or data when they relate to the state of the forest on a given date.
The fact that those sample plots are used to measure developments in the state of forest resources and soils in successive statistical forest inventories or other reports does not call that conclusion into question. To interpret it otherwise would be tantamount to allowing the exception provided for in point (d) of the first subparagraph of Article 4(1) of Directive 2003/4 to be applied without any time limit, even though that exception is, as has been pointed out above, of a temporary nature.”
28. As indicated above, the first question to be addressed is whether or not article 9(2)(c) of the AIE Regulations is engaged on the basis that the information at issue “concerns material in the course of completion, or unfinished documents or data” (i.e. which limb(s) of the exemption is being relied upon).
29. It is this Office’s view that “material in the course of completion” relates to the process of preparing information/documents. The Aarhus Guide states that “the expression ‘in the course of completion’ relates to the process of preparation of the information or the document and not to any decision-making process for the purpose of which the given information or document has been prepared.” However, this Office considers that the factual circumstance of each case is relevant to assess and considers that this exemption may apply in two ways, firstly to information that is itself in the course of completion or unfinished, but secondly to information that while not itself material in the course of completion or unfinished, sufficiently concerns the material in the course of completion or unfinished information.
30. The Aarhus Guide also includes the following commentary:
A request for access to raw environmental data cannot be refused on the grounds that it is “material in the course of completion” to be made publicly available only after processing or correction factors have been applied. In its findings on ACCC/C/2010/53 (United Kingdom), the Committee considered whether raw air pollution data collected from a monitoring station and not yet subject to data correction could be exempted from disclosure as “material in the course of completion”. The Committee considered that the raw data was itself environmental information within the meaning of article 2, paragraph 3 (a), of the Convention. […]
Similarly, the mere status of something as a draft alone does not automatically bring it under the exception. The words “in the course of completion” suggest that the term refers to individual documents that are actively being worked on by the public authority. Once those documents are no longer in the “course of completion” they may be released, even if they are still unfinished and even if the decision to which they pertain has not yet been resolved. “In the course of completion” suggests that the document will have more work done on it within some reasonable time frame. Other articles of the Convention also give some guidance as to how Parties might interpret “in the course of completion”. Articles 6, 7 and 8 concerning public participation require certain draft documents to be accessible for public review. Thus, drafts of documents such as permits, EIAs, policies, programmes, plans and executive regulations that are open for comment under the Convention would not be “materials in the course of completion” under this exception.
31. I consider that the purpose of this exemption is to give public authorities time and private space to draft and amend documents that they are preparing before they are finalised. The European Commission acknowledged this interest in its First Proposal for the AIE Directive, as did the Court of Justice of the European Union in Case C 619/19 Land Baden-Württemberg v. D.R. at paragraph 44. I emphasise that this interest is in maintaining the confidentiality of draft documents while they are still being actively worked on, rather than in maintaining the confidentiality of completed documents pending the conclusion of decision-making process.
32. In Roheline Kogukond MTÜ, the information at issue concerned location coordinates of permanent sample plots used to draw up the Estonian statistical forest inventory. The CJEU noted that “the permanent sample plots, the location coordinates of which are requested…, are sampling units used for the periodic collection of data with a view to drawing up, by extrapolation, statistical reports on forest stands in Estonia and on land use and development. Those sample plots are located on the sides of 64- hectare square plots, chosen for their representative nature of the state of the forest and soils.” The CJEU held that “[t]he location coordinates of permanent sample plots used for the collection of data for drawing up a national statistical forest inventory cannot be regarded as documents in the course of completion or as unfinished documents or data when they relate to the state of the forest on a given date. It noted that “the fact that those sample plots are used to measure developments in the state of forest resources and soils in successive statistical forest inventories or other reports does not call that conclusion into question. To interpret it otherwise would be tantamount to allowing the exception…to be applied without any time limit, even though that exception is…of a temporary nature.”
33. Advocate General Kokott in her Opinion commented “the data on the location of the permanent sample plots of the statistical forest inventory are already available in full and therefore do not fall into any of the three categories [provided for in the exception]” (paragraph 60). She further stated, at paragraphs 61 to 64:
“The fact that the data on the location of the permanent sample plots of the statistical forest inventory are to be used to regularly produce further reports on the state of the forests does not change that. Those reports and the information collected therein may at certain times fall under the abovementioned categories of cases and thus within the exception pursuant to Article 4(1)(d) of the Environmental Information Directive. However, that does not mean that the location data may be withheld. While they are explicitly or implicitly part of the reports, they are significant in their own right regardless of the individual reports, which may not yet have been completed. That is also demonstrated by the fact that those location data not only form the basis of reports that are still being processed, but – as the Environment Agency acknowledges – also form the basis of reports that have already been completed in the past.
The above considerations on the possibly limited interest of the public in the disclosure of the location data do not change the conclusion. They do not change the fact that the location data are part of operations that have already been completed.
It would be contrary to the temporary nature of that exemption to apply it indefinitely to certain data by reason of the repeated use of that data, even though the data has already been definitively established. Rather, the exception is intended to apply only during a specific period, that is to say during the processing of materials, documents and data. The idea of a time-limited application of that exception is confirmed by the second subparagraph of Article 4(1) of the Environmental Information Directive, according to which a refusal to disclose material that is in the process of being completed must already indicate when the material is expected to be complete.
Therefore, data on the location of the permanent sample plots of a regularly repeated statistical forest inventory do not constitute material in the process of being completed, nor are they documents which have not yet been completed or data which have not yet been processed for the purposes of Article 4(1)(d) of the Environmental Information Directive.”
34. I wish to reiterate that the particular factual scenario in each individual case must be considered and, in addition to the specific information at issue, is a key factor in assessing the application of article 9(2)(c) of the AIE Regulations. Cases are often distinguished on their facts.
35. As stated above, I am satisfied that article 9(2)(c) of the AIE Regulations can be relied upon in circumstances both where the information itself is, for example, “material in the course of completion” or “unfinished data”, and where the information concerns “material in the course of completion” or “unfinished data”.
36. I consider that “material in the course of completion” refers to the process of preparing “material” that is itself being actively worked on (just because something is labelled “draft” does not necessarily mean it is “in the course of completion”). However, while information no longer being actively worked on may not itself be “material in the course of completion” it may concern material in the course of completion. In assessing whether the information at issue concerns “material in the course of completion”, I am of the view that it is necessary to identify material that is actively being worked upon, be able to explain why, and how, the information at issue concerns that material, and consider whether the information at issue is a separate and independent piece of work to that material – if the information at issue is a separate and independent piece of work, the exception will not be applicable. I also consider that the material that is actively being worked upon must have a physical existence (it cannot be something that does not have a physical existence (e.g. a project, exercise or process, although it can be part of same). For example, an overarching project, even if it is not complete, cannot be considered to be “material in the course of completion”, however individual documents that form part of the project might be if they have not yet been completed.
37. I consider that “unfinished documents” are documents that a public authority is still working on (just because something is labelled “draft” does not necessarily mean it is “unfinished”) and “unfinished data” is data that a public authority is still collecting at the time of the decision. Again, in assessing whether the information at issue concerns “unfinished documents” or “unfinished data”, I am of the view that it is necessary to identify the document being worked on / data that is actively being collected, be able to explain why, and how, the information at issue concerns that document/data, and consider whether the information at issue is a separate and independent piece of work to that document/data – if the information at issue is a separate and independent piece of work, the exception will not be applicable. Whether documents/data can be considered to be unfinished depends on the circumstances. I consider that data which is part of routine monitoring or collected raw data being used as part of ongoing research or policy development, even if it has not been analysed or validated, may not generally be regarded as part of ongoing unfinished data collection.
38. Having examined the property acquisition form, I am satisfied that it can be described as a document that has been revised and updated, it has a “Revision History” table and it also includes the following sections: General Project Information, Approval Details (Comments, Mitigations, Recommendation, and Approval), Site Maps/Drawings/Photographs, and On-Site Assessment (EIA and Hazard Identification On-Site Checklists and Environmental Impact Appraisal Form).
39. I note that it is Coillte’s position that the form concerns an unfinished document and unfinished data that relates to the proposed acquisition of lands. I also note that Coillte stated that the form is updated as the transaction and application progresses. However, having examined the contents of the form, I am not satisfied that it can appropriately be categorised as an unfinished document, or that it contains unfinished data. I consider that the form can be more accurately characterised as a record of various steps taken by Coillte personnel while moving through its internal processes to make the decision as to whether to acquire this particular property. It appears to me that at each point at which information has been entered into the form, that information has been considered to be complete at that moment in time, and that the form has been an accurate reflection of the property acquisition process at that date. There is nothing in the form that indicates to me that any of the data contained therein is subject to any further checks, or that any part of the form is considered to be in “draft” form. Simply because amendments may be made to the form in the future to reflect further progress in the process of acquiring this particular property, does not mean that the form itself is unfinished until that process is complete. It is the information requested which must be examined when assessing whether article 9(2)(c) applies, rather than the decision-making process to which the information relates. The question is whether the information requested “concerns material in the course of completion or unfinished documents or data” and not whether the decision-making process in respect of which the information has been generated is incomplete. It would be contrary to the temporary nature of the exemption provided for in article 9(2)(c) to apply it to the property acquisition form throughout the entirety of the transaction and afforestation application.
40. I find, therefore, that article 9(2)(c) of the AIE Regulations is not engaged. In the circumstances, I am not required to go on and consider article 10 of the AIE Regulations at this stage.
Article 9(2)(d)
41. 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.
42. 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.
43. 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.
44. 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.
45. 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).
46. 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).
47. 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.”
48. 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).
49. 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)
50. 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).
51. 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).
52. 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)
53. 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).
54. 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”.
Internal Communications
55. 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.
56. A brief description of form at issue is provided at paragraph 38. The document is marked “Private and Confidential for Internal Discussion Only”. It is clear from the “Approval Details” section of the form that comments and recommendations are provided from various different staff members “Prior to submission to PSOC” (I understand “PSOC” refers to the “Property Sign-Off Committee”). I am satisfied that the form is prepared to share information and for consideration among different staff members internally. There is no evidence to suggest that the form has left Coillte’s internal sphere. I find that it is an “internal communication” within the meaning of the of the definition set out by the CJEU in Land Baden-Württemberg and article 9(2)(d) of the AIE Regulations is engaged.
Public interest Test
57. While I have found the form 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.
58. 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.
59. 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).
60. 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).
61. I have already set out Coillte’s position regarding article 9(2)(d) and article 10. 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 form and the extent to which I can describe certain matters in my analysis is limited. As previously stated, the form includes the following sections: General Project Information, Approval Details (Comments, Mitigations, Recommendation, and Approval), Site Maps/Drawings/Photographs, and On-Site Assessment (EIA and Hazard Identification On-Site Checklists and Environmental Impact Appraisal Form).
62. Having examined the form, I am satisfied that its release would provide insight into Coillte’s approach and considerations when carrying out its property acquisition process. According to its website, “…Coillte, Ireland’s semi-state forestry company, is responsible for managing 440,000 hectares of primarily forested lands. It is the nation’s largest forester and producer of certified wood, a natural, renewable and sustainable resource. Coillte is also the largest provider of outdoor recreation space in Ireland, it enables wind-energy on the estate, processes forestry by-products and undertakes nature rehabilitation projects of scale. Coillte delivers the multiple benefits of forestry, including forests for climate, for nature, for wood and for people.” There is undoubtedly a strong public interest in the openness and transparency with regard to Coillte’s approach and considerations when carrying out its property acquisition process. I also note that having examined the information in the form some, although not all, of it is similar to information that is publicly available on the FLV in respect of the licence application CN92945.
63. Conversely, 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 accept that there is a strong public interest in protecting the space required by Coillte to think in private, engage in reflection, pursue free and frank internal discussions, and develop its views regarding the ongoing acquisition process generally, including the merits or otherwise of proceeding with the proposed purchase and consequent afforestation of lands. However, while I acknowledge Coillte’s comments that release of the information may cause harm to Coillte’s ability to conduct its transactions effectively, Coillte did not point to specific information within the form the release of which would have such an impact, as required by the CJEU in Land Baden-Württemberg. Coillte also did not explain why particular information within the form which comprised/reflected strategic considerations is of a confidential and commercially sensitive nature. Simply because an internal communication may provide some insight into the internal thinking of a public authority does not mean that it is automatically protected under this exemption. It is also unclear to me what “countervailing public interest considerations” Coillte was referring to in its comment in its internal review decision “that particularly, in a regulatory context where there are ongoing processes, and where the regulatory system is itself designed to protect the environment and to enforce environment-facing laws, there are significant countervailing public interest considerations that can serve to lead to the reasonable conclusion…that the public interest in release, or release at this point, of the information sought would not serve the public interest as well as non-disclosure would.”
64. Furthermore, I note Coillte’s contention that information that has been deemed relevant by the Department is published online on the FLV along with the Form 1 afforestation application with the consequent right of any member of the public to make observations or submissions to the Department on the application and that the form does not add anything to public participation in an afforestation application. This is contradicted by Coillte’s comment that it is reasonably foreseeable that the information could be used by a third party in making a submission to the Department on the afforestation application. This is in fact a reason that would weigh in favour of the release of the information sought, given that enabling greater public participation in environmental decision-making is a fundamental aim of the AIE regime.
65. Having regard to all of the above and examined the information concerned in the form at issue, I cannot see how release would undermine the private thinking space of Coillte to the extent that it should be considered to outweigh the public interest in disclosure. Accordingly, I direct release of the property acquisition form, subject to the redaction of certain information which does not fall within the scope of this review, namely: vendor name; address; and contact details; as follows:
• middle of page 2 – information after “Details of Vendor”
• bottom of page 2 – information in table after “Details of Vendor”;
• page 9 – name in upper box on right hand side of map.
66. Having carried out a review under article 12(5) of the AIE Regulations, I hereby annul Coillte’s decision under articles 9(2)(c) and 9(2)(d) of the AIE Regulations in this case. I direct Coillte to release the property acquisition form, subject to the redaction of certain information which does not fall within the scope of this review, as described above.
67. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Julie O’Leary
On behalf of the Commissioner for Environmental Information