Decision
Mr F and Department of Agriculture, Food and the Marine
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132596-D0X6Z5
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-132596-D0X6Z5
Published on
Whether the Department was justified in refusing the request under articles 8(a)(iv) and/or 9(1)(b) of the AIE Regulations
18 September 2024
1. On 26 September 2022, the appellant submitted the following request for information with the Department:
“All information which informed the Minister’s response to PQ [Parliamentary Question] 45892/22 notably the statement
‘I will not be revisiting all licences that predate the FAC [Forestry Appeals Committee] decision’.
“Information to include all correspondence; any media.
“Please provide full schedule of records with the response”
2. The Minister’s statement quoted above was in response to a parliamentary question seeking information on his authority retrospectively to amend the conditions attached to forestry licences in order to take into account ornithological advice that had been adopted by the Forestry Appeals Commission in appeals before it advocating for the bringing forward from 1 April to 1 March in any given year the restricting of forestry activity with a view to reducing disturbance during the hen harrier breeding season. The FAC adopted this advice insofar as it affected the appeals before it. The Department, however, decided to implement this change for other relevant forestry licences but only in respect of licences that had issued from the date of the FAC’s decision. The Minister’s statement that he would “not be revisiting all licences that predated the FAC decision” gave rise to the request the subject of this appeal.
3. The Department issued a decision on 24 October 2022 refusing the appellant’s request “as it does not meet the definition of ‘environmental information as set out in article 3(1) of the AIE Regulations.” The decision went on to explain why the request did not meet this definition by stating that “[d]iscussions/correspondence between the Minster and staff members in relation to an answered PQ do not fall within the definitions of environmental information as outlined above.”
4. On the same day, the appellant submitted an internal review request with the Department, contending that the information requested was environmental information.
5. On 23 November 2022, the Department issued its internal review decision, affirming its original decision. It stated further that, in accordance with articles 10(3) and 10(4) of the AIE Regulations, it had weighed the public interest served by disclosure against the interest served by refusal of the request, determining that the public interest would not be served by disclosure of the information as it did not fall within the definition of environmental information outlined in the AIE Regulations.
6. On 24 November 2022, the appellant submitted an appeal to this Office arising from the fact that the Department had refused his request on the basis that the information requested did not fall to be considered environmental information under article 3(1) of the AIE Regulations and, on 19 December 2022, made detailed submissions in support of his appeal.
7. On 30 March 2023, the Department issued a revised internal review decision letter to the appellant, together with a schedule of records, granting access to four records but refusing one under, according to the schedule of records, “Article 8” of the AIE Regulations and which the decision letter clarified was article 8(a)(iv) of the Regulations. The letter stated the Department had reconsidered the request following consultation with this Office.
8. By email on 31 March 2023, the appellant indicated to this Office that, following receipt of the revised decision from the Department, he considered his request “to remain unfulfilled.” On 11 and 20 April 2023, he indicated to this Office that he remained “dissatisfied with the decision.”
9. The Department then issued a further revised internal review decision letter to the appellant on 27 March 2024, accompanied by a further schedule of records, this time granting “full access to eleven (11) available records.” However, on this occasion, the schedule did not include the record that had been refused in March 2023. Upon examination of the records by the investigator, it transpired that one of the records on the schedule was actually an email compilation of seven of the records on the schedule. Excluding that compilation email, in reality, the Department was releasing ten records. Seven were decision letters of the Forestry Appeals Committee, one was an expert report to which reference is made in one or more of those letters, and two were email exchanges between Department of Agriculture and Department of Housing officials (the latter appearing to pertain to this Department’s National Parks and Wildlife Service) that also allude to that report and discuss the hen harrier breeding season and the possibility of the Department’s changing its timing restriction on tree felling and forest road projects to accord with a recommendation in the report. The report is the source of the advice which led to the extension of the hen harrier breeding season from 1 March annually.
10. The next day, the appellant responded to the Department, saying that he remained “dissatisfied with the decision” and maintaining that his appeal to this Office “is still open”.
11. Upon enquiry by a new investigator assigned to the appeal, the appellant confirmed on 20 June 2024 that he wished to pursue the appeal, noting that “[r]ecords should exist regarding the legal advice sought and provided”, referring to the legal advice received by the Department and to which allusion was made in its first internal review decision of 23 November 2022.
12. Upon enquiry by the assigned investigator, the Department confirmed to this Office on 13 August 2024 that, despite its having stated in the internal review decision letter of 27 March 2024 that it was granting “full access” to eleven available records, it was maintaining non-disclosure of one record under article 8(a)(iv) of the AIE Regulations. That record was a communication between Department officials and the Department’s legal service on the matters in question, and the Department contends that this record benefits from legal privilege.
13. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In carrying out this review, I have had regard to the submissions made by the appellant and the Department. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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);
d. the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
14. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
15. A review by the Commissioner is considered to be de novo, which means that it is based on the circumstances and the law at the time of the decision. This generally means that the internal review decision of the public authority in question forms the basis of the review. In this case, I consider it appropriate to examine both the second and the last iterations of the Department’s internal review decision, issued on 30 March 2023 and 27 March 2024, respectively, and to disregard the first iteration. This is because, given that the Department refused access to one record in the decision letter of 30 March 2023, I consider it appropriate to review the Department’s decision not to include that record in the last iteration of the schedule of records on 27 March 2024. It is not apparent from that last internal review decision letter whether the appellant was provided with a fresh schedule of records, as there is no reference to it in the letter, but it is clear from the letter that issued on 30 March 2023, namely the second internal review decision letter, that a schedule was provided to him on that occasion, and that this schedule did list the record that was not being released by virtue of article 8(a)(iv) of the AIE Regulations. I consider the appellant should have been provided with an explanation for why that record does not appear on the latest schedule of records, whether this issued to him or not, particularly as the Department continues to refuse to disclose that record to him.
16. Since the Department’s second internal review decision, it is settled that the information requested constituted “environmental information” as defined by article 3(1) of the AIE Regulations as the decision did not continue to raise this issue, and instead relied on an exemption in the Regulations to refuse access to one record, namely on article 8(a)(iv).
17. In the course of the review of this case, the investigator sought the view of the parties as to whether article 9(1)(b) was a more appropriate and relevant provision in the context of the appeal. As I have noted in several recent decisions, where a public authority contends that information sought is legally privileged, article 9(1)(b) is the correct exemption to apply. Accordingly, the scope of the review in this case concerns whether the refusal of the request by the Department is justified on the basis of that provision or article 8(a)(iv).
18. As noted, three internal review decisions issued in this appeal, with the last one omitting any reference to a record that had been explicitly refused in the second internal review decision and which had been listed as refused on the accompanying schedule of records. While I welcome the Department’s willingness to revisit its decision, it is unclear why the third decision and schedule made no reference to that record while the Department continued to refuse to release it. In any event, I wish to make the point that a schedule of records is a tool, both for a requester and for this Office should a request lead to an appeal, to identify all records relevant to a request, whether refused, part-refused or granted. I urge the Department in future to take note of this convention and to put it into practice. As the appellant has already received three internal review decision letters in relation to his request, it was considered appropriate by the investigator not to request that a fourth, corrected, iteration of the schedule of records issue to him following the Department’s confirmation on 13 August 2024 that it was continuing to refuse to grant access to the non-disclosed record.
19. I note for the record that the first internal review decision affirmed the original decision to refuse the request on the basis that the information requested did not fall under the definition of environmental information as outlined in the AIE Regulations (article 3(1)). In acknowledging the request, the letter informed the appellant that the restriction on forestry activity imposed by decision of the Minister following the aforementioned FAC appeal decision was not going to be applied by the Department (acting for the Minister) to licences that predated the decision, “following legal advice”. The Department, in its second internal review decision letter, implicitly acknowledged that the information requested fell under the definition of environmental information as formulated in article 3(1) of the AIE Regulations, by formally relying on article 8(a)(iv) to exempt a record from release as it was a communication protected by legal professional privilege, having been made for the purpose of giving or receiving advice between “legal services” and the Department. Accordingly, this decision will not deal with the appellant’s submissions to both the Department and to this Office insofar as they refer to article 3(1) of the AIE Regulations, as the Department is no longer seeking to argue that the requested information comes within that article’s definition of environmental information. Rather, it will deal with the matter of the refusal of the Department to release that record by reason of article 8(a)(iv) and/or article 9(1)(b) and the appellant’s responses thereto.
20. I note also that the Department, in its first internal review decision, stated that, in accordance with articles 10(3) and 10(4) of the AIE Regulations, it had weighed the public interest served by disclosure against the interest served by refusal of the request, determining that the public interest would not be served by disclosure of the information as it did not fall within the definition of environmental information outlined in the AIE Regulations. The Department should take note that where a public authority deems information requested not to be “environmental information” in accordance with article 3(1) of the AIE Regulations, there is no requirement to implement the provisions of articles 10(3) and 10(4) of the Regulations, which apply only where one of the exempting provisions in articles 8 and 9 are relied upon to refuse to release information.
The Appellant’s position
21. The position of the appellant is as follows:
a. Following the second internal review decision, the appellant responded to the Department on 31 March 2023 to say that none of the information provided “gives any indication as to why the Minster will not be revisiting licences that predate the FAC decision”;
b. Following the third and final internal review decision, the appellant responded to the Department on 28 March 2024 to say that no information had been provided “in respect of why the Minister will not be revisiting all licences which predate the [FAC] decision. No basis for refusal has been offered. There is no indication that any members of staff have been contacted in respect of this request as part of the searches”;
c. On 20 June 2024, the appellant confirmed his continuing this appeal, as “[r]ecords should exist regarding the legal advice sought and provided.” It was his view “that it is inconceivable that a decision of this nature (to not retrospectively apply a restriction) could occur in a vacuum in terms of environmental records.”
d. In respect of the Department’s reliance on articles 8(a)(iv) and/or 9(1)(b) to refuse to release a record that it maintains is protected by Legal Professional Privilege (LPP), the appellant, in summary, is of the view that:
i. in the case of general legal advice, where the release of the advice would not compromise the administration of justice, as distinct from advice specific to a matter that is in the course of justice, it is in the public interest that the legal advice be released in order for the public to understand the legal position adopted by a public authority; he maintains that in this case, the advice is general in nature;
ii. similarly, where a series of options constitute legal advice given, it is in the public interest that they be widely known in order for the public to understand a public authority’s course of action based on those options;
iii. the Department in this case has not demonstrated an adverse effect that would result from the release of the advice but has merely had recourse to the general principle of legal professional privilege in order to thwart release of the advice in the manner of a blanket ban;
iv. the application of LPP “across the board” would deny the public the possibility of exposing a public authority which acts to serve its own interests rather than those of the wider public.
The Department’s position
22. The position of the Department is as follows:
a. In its second internal review decision letter, it refused one record on the basis of article 8(a)(iv) and legal professional privilege which, it stated, protects communications that are made for the purpose of giving or receiving advice between legal services and the Department;
b. It further expanded on this basis in comprehensive submissions to this Office, maintaining that the refused record was a confidential communication between Department officials and their in-house legal advisors for the purpose of obtaining and/or giving legal advice and that legal advice privilege attaches to the record;
c. It is the understanding of the Department that the grounds for refusal in legal professional privilege cases may be more aligned to article 9(1)(b) of the AIE Regulations and for the purposes of this appeal, it strongly maintains that the email communication refused is legally privileged and that the AIE Regulations protect such records from disclosure whether by virtue of article 8(a)(iv) or article 9(1)(b) or both;
d. In applying the public interest balancing test in accordance with article 10(3) of the AIE Regulations, it took a number of factors into account, concluding that release of the record was not in the public interest. Those factors are described in detail below at paragraph 31.
The matter of a disclosed record not included in the last schedule of records
23. As noted above, the record that has been withheld by the Department did not appear on the last iteration of the schedule of records that issued to the appellant. This is regrettable, as the whole basis for the existence of such a list of records is to put the appellant on notice of the records that are being granted, part-granted or refused by a public authority consequent upon a request for information. Arising from this deficit, the Department has been advised for future reference by this Office that schedules of records are to contain all records that are relevant to a request for information under the AIE Regulations, whether granted, part-granted or refused.
Does the withheld document attract the protection of LPP under article 8(a)(iv) or 9(1)(b)?
24. It is the Commissioner’s position that environmental information that is sought to be protected from release by virtue of Legal Professional Privilege finds protection in article 9(1)(b) rather that in article 8(a)(iv). I note from the Department’s submissions to this Office that this is its understanding also and I find no objection to this position in the appellant’s submissions in regard to this matter. This being the case, the analysis which follows takes it as established that article 9(1)(b) is the pertinent article from whose vantage point the correctness of the Department’s refusal to release the document in question will be viewed.
Does the exception in article 9(1)(b) apply?
25. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries). Article 9(1)(b) seeks to implement Article 4(2)(c) of the AIE Directive, which is in turn based on Article 4(4)(c) of the Aarhus Convention. I note that the Aarhus Guide takes a narrow approach to construction of the relevant provision in the Aarhus Convention, interpreting “the course of justice” as referring to “active proceedings within the courts”. However, I also note that the Aarhus Guide, while a source of helpful guidance, is but a Guide, is not legally binding and is not determinative (Right to Know CLG v Commissioner for Environmental Information IEHC 353, paragraph 20).
26. LPP is a right of a person to refuse to disclose any communications with his or her lawyer made for the purpose of giving or receiving legal advice. It is a common law right with a constitutional foundation, as a dimension of the protection of the administration of justice afforded by Article 34 of the Irish Constitution. The existence of LPP is predicated on there being a public interest requirement for it in the proper conduct of the administration of justice, such that it is “a fundamental condition on which the administration of justice as a whole rests” (see Martin v Legal Aid Board [2007] IEHC 76 and Miley v Flood [2001] IEHC 9). In light of this, I accept that the disclosure of information which would breach LPP would, as a result, adversely affect the course of justice, within the meaning of Article 9(1)(b) of the AIE Regulations.
27. LPP encompasses legal advice privilege and litigation privilege. Legal advice privilege covers a communication between “a person and his lawyer acting for him as a lawyer for the purpose of obtaining from such lawyer legal advice whether at the instigation of the client or the lawyer” (Smurfit Paribas Bank Limited v. AAB Export Finance Limited [1990] 1 IR 469). In light of the guidance set out in McMahon v Irish Aviation Authority [2016] IEHC 221, I understand that for legal advice privilege to apply: (a) there must be a communication between a client and a lawyer (including solicitors, barristers, salaried in-house legal advisers, foreign lawyers and the Attorney General); (b) the communication must have been made in confidence; (c) the communication must have been made during the course of a professional legal relationship; and (d) the communication must have been made for the purposes of the giving or receiving of legal advice.
28. In this case, the Department contends that the withheld record in question constituted a confidential communication between Departmental officials and their salaried in-house legal advisers for the purpose of obtaining and/or giving legal advice. It maintains that legal advice privilege attaches to the information in the record the Department has refused to release, for the following reasons:
a. the information records a communication between the head of the forestry inspectorate of the Department (a client) and the head of legal services of the Department (a lawyer, effectively the Department’s solicitor), regarding advice sought by the former from the latter;
b. the communication was made in confidence between the aforementioned parties for the purpose of obtaining and/or giving legal advice;
c. the relationship between the Department in the person of its head of forestry inspectorate and the Department in the person of its head of legal services is, by inference, a professional legal relationship; and
d. the communication involved the seeking and receipt of legal advice.
29. I have not seen anything to indicate that LPP has been waived by the Department in this instance. I am satisfied that the withheld information is subject to LPP. Accordingly, my view is that release of the information would breach LPP. I acknowledge that article 9(1)(b) does not protect legally privileged information in and of itself. However, I am satisfied that the disclosure of this information would adversely affect the course of justice, as it would undermine the general assurance that correspondence with one’s legal advisor will remain confidential. I consider that this applies regardless of whether there are current or envisaged proceedings in place. LPP does not require related proceedings to be in being. I therefore find that article 9(1)(b) applies to the information sought.
Does the public interest served by refusal outweigh the interest served by refusal?
30. I will now proceed to consider whether the interest in withholding the relevant information is outweighed by the public interest in its disclosure, having regard to the provisions of article 10(3) and 10(4) of the Regulations.
31. The Department has sought to apply the public interest test in correspondence with this Office, and the factors it took into account in favour of release and in favour of withholding were forwarded to the appellant for comment. His observations on those factors are listed at paragraph 21.d. above. In the Department’s submissions, in applying the public interest test in articles 10(3) and 10(4) of the AIE Regulations, it has proffered the following factors as relevant to the public interest in not releasing the record:
i. Release of communications protected by the confidentiality between lawyers and their clients would undermine the ability of public bodies to seek candid legal advice, knowing that the advice might later be divulged to the public;
ii. Department officials must have the assurance that the content of such communications remain confidential to allow them to communicate in confidence with their in-house lawyers for the purpose of seeking and receiving legal advice, thus ensuring that legal advice is as accurate and candid as possible; the proper administration of justice requires that clients can communicate freely with their legal advisors, otherwise lawyers could be deterred from providing full and frank advice, negatively impacting the quality of decision-making;
iii. Release of legal privileged information has the potential to expose the Department’s strategy or weaken its position, leading to unfair outcomes in disputes, an erosion of trust in the legal system and broader concerns about the fairness and integrity of legal processes;
iv. Overall, the maintenance of LPP for public authorities ensures they can function effectively and make legally sound decisions to the ultimate benefit of the public interest.
32. In favour of refusal, I note that the case law referred to above makes it clear that the protection of LPP is of fundamental importance to the administration of justice. The courts have emphasised the importance of the principle to facilitating free and frank communication with legal advisers (see, for example, Barr J’s summary of the rationale for protection in McMahon v Irish Aviation Authority [2016] IEHC 221 at paragraphs 7-11). I also consider that that the existence of legal professional privilege encourages public authorities to seek legal advice freely and frequently, and that there is a public interest in ensuring that public authorities seek legal advice about their obligations, particularly in relation to environmental matters.
33. I take note of the appellant’s point that the Department failed to consider any factors that weigh in favour of disclosure. The Department should take cognisance of this failure in its future AIE decision-making. In considering the public interest served by disclosure in this case, I consider that there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive. There is also a general interest in the openness and transparency of the Government’s decision-making processes in relation to environmental matters. I note also the appellant’s argument that, if a series of options constitute legal advice given, it is in the public interest that they be widely known in order for the public to understand a public authority’s course of action based on those options. I am also of the view that increased transparency around the internal deliberations of public authorities is an important consideration in applying the public interest test. I have also considered the importance of the protection of species such as the hen harrier and the public interest in the release of information that may affect that protection.
34. However, having considered the interest in directing release of the specific legal advice at issue in this case, I have come to the conclusion that the public interest in disclosure of this particular information is not sufficient to outweigh the fundamental importance of the interest of preserving the Department’s right to LPP in relation to the advice that it received from its in-house legal adviser. While I am not at liberty to reveal the contents of the withheld records, I have considered the legal advice given in this case when coming to this conclusion. Legal professional privilege is a significant feature of our legal system and the Courts have noted on numerous occasions the strong public interest which exists in protecting it. The proper administration of justice requires that clients can communicate freely with their legal advisors and third party experts. There is a strong public and private interest in protecting the proper administration of justice and so in protecting LPP.
35. I do note, however, that the matter of release or non-release of information where LPP and article 9(1)(b) may apply to a request for environmental information is case-specific and there may be situations where release of such information is warranted under the public interest balancing test. It is important that public authorities remember that since 2007 it is open to them to release legally privileged information, and to this Office to direct such release following receipt of an appeal, under the public interest balancing test. Each case will be considered by this Office based on its particular factual circumstances. However, in the circumstances of this particular case, I do not find that the public interest in disclosure outweighs the interest served by refusal.
36. I note that a client receiving confidential legal advice is open to giving consent to its release, or part release, and this is a matter the Department is at liberty to consider in the course of time in the interests of openness and transparency in the furtherance of more effective participation by the public in environmental decision-making and, eventually, a better environment
37. Accordingly, I affirm the decision of the Department to refuse access to the information sought, but I vary the basis for doing so and find that article 9(1)(b) applies to the withheld information and that the public interest in refusal outweighs the public interest in disclosure.
38. In light of this finding, it is not necessary for me to address the application of article 8(a)(iv) of the AIE Regulations in this case.
39. I note for the sake of completeness that the Department has made no submission in regard to the possibility of separating out and releasing information in the withheld record that may not be subject to LPP, in accordance with article 10(5) of the AIE Regulations. However, having had sight of the record, I confirm that it consists, in its entirety, of information subject to LPP, thereby not being susceptible of the application of article 10(5).
Conclusion
40. Accordingly, I find that the Department’s reliance on article 9(1)(b) of the AIE Regulations in this case is justified and that the public interest in disclosure of the information at issue is outweighed by the public interest in its non-release, in accordance with articles 10(3) and 10(4) of the AIE Regulations.
41. Having carried out a review under article 12(5) of the AIE Regulations, I find that the refusal of the information sought was justified but I vary the basis for doing so and find that article 9(1)(b) applies to the withheld information.
42. 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