Mr. X and University College Dublin

Background
Scope of Review
Preliminary Matters
Analysis and Findings
Decision
Appeal to the High Court

Whether UCD was justified, under various provisions of the AIE Regulations, in refusing access to certain information relating to the HydroSed project

16 August 2024

Background

1. This case has its background in an ongoing research project, HydroSED. According the HydroSED project website , it is a collaborative research project funded by the Department of Agriculture Food and the Marine (the Department) that seeks to assess the hydrological and sediment impacts of forest operations in Ireland. There are four project partners: UCD (lead), Munster Technological University (MTU), Coillte, and Green Belt Ltd. The “About” section of the HydroSED project website further explains:

“Forestry presents pressures to the ecological status of watercourses, with sediment release being a recognised stressor in this regard. This field-based project measures flow change and sediment release at seven forestry sites with adjacent or nearby lotic waterbodies. Study sites reflect a range of soils, topographical and hydrological settings relevant to Irish forestry and the monitoring strategy targets different forestry operations (afforestation, harvesting, windrowing and reforestation). Data is related to levels of deposited sediment in riverbeds and ultimately to changes in hydromorphology and aquatic community health, with sediment fingerprinting being used to disentangle forestry operation impacts on suspended and deposited fine sediments from other catchment pressures. The efficacy and performance of commonly adopted sediment control measures in forests is also assessed. A hydrological model in combination with an appropriate soil loss model will be developed and tested to simulate hydrological and sediment release processes in Irish forestry settings.”

2. On 19 April 2022, the appellant submitted a request to UCD seeking access to: “All environmental records relating to the ongoing HydroSED project to include, but not restricted to

Methodology
Interim Reports
Preliminary findings
Correspondence
GIS data (in GIS format).”

3. The appellant asked that the information be provided as soon as possible “in electronic format and GIS format (ERSI Shapefiles and attribute data)”.

4. On 16 May 2022, UCD wrote to the appellant noting that, as the project had been in progress for some time, there would be a significant amount of correspondence relating to part 4 of his request. It stated that the “search and retrieval of such records would cause a substantial interference to the work of the [principal investigator] and his team”. It asked the appellant to consider narrowing the scope of part 4 and suggested limiting the correspondence to specific individual(s) or particular aspects of the project. The appellant responded, noting that he was prepared to limit the scope of part 4. He asked if the principal investigator could give an indication of what would help narrow the request, as he did not know the names of the individuals involved. UCD responded, stating that it would follow up with the principal investigator and be in touch.

5. On 27 May 2022, the appellant submitted an internal review request in respect of UCD’s deemed refusal of his original request dated 19 April 2022. UCD replied, acknowledging receipt of the appellant’s internal review request. It explained that it seemed an “impossible task” to assist the appellant in narrowing the scope of part 4 of his request. It outlined that a “one-word” search of one individual’s emails for correspondence with another individual involved in the project, returned over 1000 emails. It further noted that even a search of correspondence limited to one individual involved with / one aspect of the project, would be “manifestly unreasonable”. The appellant responded and refined his request dated 19 April 2022 by excluding part 4.

6. On 24 June 2022, UCD issued an internal review decision in response to the appellant’s refined request. It refused access in full to an unidentified number of records under articles 9(1)(d) and 9(2)(c) of the AIE Regulations.

7. On 27 June 2022, following receipt of UCD’s internal review decision, the appellant wrote to UCD asking if a schedule of records could be provided to him. On 30 June 2022, UCD responded stating that no schedule was prepared and that it was not required to create one under the AIE Regulations. The appellant replied, outlining his view that, in the absence of a schedule, UCD had not provided adequate reasons for refusal. He sought a response to that correspondence on 7, 11, 12, and 14 of July 2022, and 4 August 2022.

8. On 14 July 2022, the appellant submitted a new request to UCD seeking access to the same type of information that he had requested on 19 April 2022. In addition, he stated “[p]lease provide a full schedule of records with your decision.”

9. On 9 August 2022, UCD provided the appellant with a schedule of records and a copy of its decision that had issued on 24 June 2022. It also stated that the appellant’s request dated 14 July 2022 had been withdrawn, as he had now been provided with a schedule, as requested.

10. On 15 August 2022, the appellant submitted an internal review request in respect of his 14 July 2022 request. He contended that UCD should have processed that request as a new request and, as it had not done so, he considered a deemed refusal to have occurred. UCD responded, on 18 August 2022, advising the appellant that its position was that his request had already been answered with its decision of 24 June 2022.

11. On 19 September 2022, the appellant submitted an appeal to this Office regarding his request dated 14 July 2022. Subsequently, on 12 October 2022, the appellant also submitted an appeal to this Office regarding UCD’s internal review decision on his request dated 19 April 2022, as refined.

12. On 25 October 2022, this Office wrote to both parties, outlining that while the appellant made two appeals to this Office, one regarding his request dated 19 April 2022, as refined, and the other regarding his request dated 14 July 2022, the appeal at issue concerned the request dated 14 July 2022, which included the information previously sought, such that the requests could be treated as one for: “All environmental records relating to the ongoing HydroSED project to include, but not restricted to

Methodology
Interim Reports
Preliminary findings
Correspondence
GIS data (in GIS format).”

13. Following correspondence between all of the parties, on 8 November 2022, the appellant agreed to narrow the scope of part 4 of his request dated 14 July 2022 to emails held by the project co-ordinator for the 3-month period prior to the date of his request i.e. the period 14 April 2022 to 14 July 2022.

14. In accordance with this Office’s procedures, UCD was requested to advise the appellant of its effective position on his request of 14 July 2022. It did so on 15 December 2022, outlining that it had decided to part-grant access to the information sought, withholding certain information under articles 8(a)(i), 8(a)(iv), 9(1)(d), and 9(2)(c) of the AIE Regulations. UCD also provided the appellant with a schedule of records.

15. On 16 December 2022, the appellant wrote to UCD stating:

“…I wish to seek a review of the decision in respect of; File 1 Items 1, 2, 3 The decision maker has failed to establish that any recognised intellectual property right exist and would be adversely affected by the release of the information sought Article 9 (2) (c) does not apply to completed Reports File 2 Items (Page No), 53-63, 81-106, & 109-110 The decision maker has failed to establish that any recognised intellectual property right exist and would be adversely affected by the release of the information sought…”

16. On 28 December 2022, the appellant informed this Office that he wished to appeal UCD’s decision to withhold information under articles 8(a)(i), 9(1)(d), and 9(2)(c) of the AIE Regulations.

17. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In doing so, I have had regard to the correspondence between UCD and the appellant as outlined above and to correspondence between this Office and both UCD 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)

18. What follows does not comment or make findings on each and every argument advance but all relevant points have been considered.

Scope of Review

19. As noted, the appellant, in his statement of appeal to this Office dated 28 December 2022, specifically referred to articles 8(a)(i), 9(1)(d), and 9(2)(c) of the AIE Regulations. A review by this Office is limited in scope by the wording of the statement of appeal and, while it can be narrowed further, it cannot be expanded. Accordingly, although the appellant in subsequent submissions to this Office referred to article 8(a)(iv) of the AIE Regulations and contended that there was other information, additional to the records already identified, which had not been located (e.g. GIS maps/data), I cannot consider such information to be within the scope of this review. However, it is open to the appellant to make a fresh request to UCD for such information, should he wish to do so.

20. The appellant, in his submissions to this Office, also stated:

“I have assumed that the reference to Article 8 in most instances refers to Article 8 (a) (i)…Whilst I am of the view that the decision maker has not established that an adverse effect will result from the release of personal information in each instance I am prepared to let this pass in terms of the efficiency of dealing with the appeal. I am more interested in the substantive technical information of the request than any personal information which may relate to it. I am of the view that information has been withheld contrary to the Regulations, or at least without adequate justification, but it is not the primary information that I am interested in. I appreciate that there is a lot of information on the file and I am happy to discuss the scope of my appeal with the case investigator. However, I do wish to point out that certain records have been refused on the basis of Article 8 (Schedule) where information that is not personal information has been redacted – e.g. Page 12, Page 24 and Page 112 of the PDF provided to me where locational or technical information has been redacted.”

21. In subsequent correspondence with this Office, the appellant confirmed that the extent of the appeal in relation to the application of article 8(a)(i) of the AIE Regulations could be limited to information that could be described as “locational or technical information” which was refused under article 8(a)(i) of the AIE Regulations. Having examined the information concerned, I am satisfied that only a small amount of the relevant information withheld under article 8(a)(i) of the AIE Regulations would comprise what I understand the appellant to be referring to as “locational or technical information”, namely certain information (see Appendix for detail) redacted from pages 14, 26, 114, and 135 (as per page numbers of PDF thumbnails on undredacted copy of File 2 provided to OCEI - pages 14, 26, and 114 correspond to page numbers 12, 24, and 112 referred to by the appellant). All of the particular “locational or technical information” concerned is contained within the information that is also being refused under articles 9(1)(c), 9(2)(d), and 9(2)(c) of the AIE Regulations.

22. UCD, in its submissions to this Office, contended that the scope of the appeal should be determined by reference to the appellant’s email dated 16 December 2022 (see “Background”) and thus limited to the information withheld which is referred to in that email. However, the appellant, in fact, appealed to this Office by way of his statement of appeal dated 28 December 2022 (a copy of this statement of appeal was provided to UCD on 3 January 2023 and was also restated to UCD on 23 January 2023). UCD indicated its view that the appeal was limited to the following information withheld in full or in part, under article 9 of the AIE Regulations, and contained within two files:

File 1 (Project Records) – Project Proposal, 6 Month Progress Report, Year 1 Progress Report
File 2 (Correspondence Records) – Newsletters, Presentation Slides

23. UCD stated that in addition to refusing access to the above information under articles 9(1)(d) and 9(2)(c) of the AIE Regulations, it was refusing access under article 9(1)(c) of the AIE Regulations. UCD stated that all other information withheld from File 2 had been withheld under article 8 of the AIE Regulations and had not been included by the appellant in his appeal. However, the appellant did appeal the application of article 8(a)(i) to information he considers to fall outside the definition of “personal information”. In addition, having examined the information before me, including the schedule of records provided by UCD to both the appellant and this Office, it appears to me that some of the other information withheld from File 2 was, in fact, also withheld under article 9 of the AIE Regulations, namely information contained on pages 25, 72, 82, and 132 (as per page numbers of PDF thumbnails on undredacted copy of File 2 provided to OCEI).

24. In all the circumstances of this case and having examined the information and the schedule, I am satisfied that the scope of this review concerns whether UCD was justified, under article 8(a)(i), in refusing access to certain information on pages 14, 26, 114, and 135, and under articles 9(1)(c), 9(1)(d), and 9(2)(c) of the AIE Regulations, in refusing access to that information and the following information withheld in full or in part (a more detailed breakdown, including page numbers, is set out in the Appendix):

Information withheld in full:

File 1 (Project Records): Project Proposal, 6 Month Progress Report, Year 1 Progress Report (including Attachments to Year 1 Progress Report)
File 2 (Correspondence Records): Presentation Slides (pack and two further slides)

Information withheld in part:

File 2 (Correspondence Records): Fieldwork Risk Assessment Template (project data) Email re. Insurance Letter (financial data), Newsletters (project data), Letter re. Luggala Research Collaboration (project data), Email re. Update (project data).

Preliminary Matters

25. Before I consider the substantive issues arising, I wish to make a number of preliminary comments. First, it is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal.

26. Second, while there is no requirement under the AIE Regulations for public authorities to provide requesters with a schedule of information / records relevant to a request, this Office considers that, in order to help ensure that adequate reasons for decisions are given, it is generally best practice to do so.

27. Third, where a requester is not satisfied with a public authority’s internal review decision, although nothing precludes the parties from engaging in further correspondence or the requester from making similar overlapping requests to the same public authority for processing, the most appropriate next step is for the requester to immediately proceed to appeal to this Office.

28. Fourth, a review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of the decision.

29. Finally, it should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the information concerned and the extent to which I can describe certain matters in my analysis is limited.

Positions of the Parties

Appellant’s Position

30. In his submissions to this Office, the appellant outlined his view that UCD’s refusal of the information at issue is not justified. Among other things, he contended that UCD’s grounds for refusal lacked clarity and adequate reasoning.

31. Regarding UCD’s application of article 9(1)(d) of the AIE Regulations, he submitted that UCD “failed to establish that any recognised intellectual property right exists and would be adversely affected by the release of the information sought.”

32. Regarding UCD’s application of article 9(2)(c) of the AIE Regulations, he submitted that article 9(2)(c) “does not apply to completed Project Proposals, Project Reports, published or circulated [n]ewsletters or [s]lides which have been presented at [m]eetings. Such information must be deemed to be completed, especially in the case of Project Reports which have been submitted to [the Department]. There is no indication that any of the individual records refused on the basis of [article 9(2)(c)] are in an incomplete state. It appears to me that UCD is basing the concept of “in the course of completion” on a process and not, as it should do, on the individual item of environmental information.” The appellant further clarified his position that article 9(2)(c) cannot apply to all of the information falling within the scope of his request and that UCD has not demonstrated that article 9(2)(c) (or article 9(1)(d)) applies to any of the information. He commented “there is certain information which falls within the scope of my request which, by its nature, cannot fall within the realm of article 9(2)(c).”

33. Regarding UCD’s application of article 8(a)(i) of the AIE Regulations, as indicated in his comments set out in the “Scope” section above, he submitted that article 8(a)(i) of the AIE Regulations does apply to “locational or technical” information.

34. The appellant submitted that article 10 was not properly considered. He set out his view that the public interest in disclosure of the information at issue outweighs the interest served by refusal. The appellant’s submission regarding article 10 of the AIE Regulations included the following comments:

“It can be argued that the release of sediment in to receiving waters as a result of forestry operations should be considered to be an emission in to the environment. Therefore the HydroSED project is a research project on emissions and my request falls within the scope of [a]rticle 10(1) of the Regulations.”
“In taking a blanket approach to my request [UCD has not] applied [a]rticle 10(4) which could have resulted in information being released under [a]rticle 10(5).”
“Notwithstanding my contention that the exceptions of [a]rticle 9(1)(d) and [a]rticle 9(2)(c) have not been demonstrated to apply I am of the view that, even if and where they do apply, there is still a solid public interest argument for the release of the information.”
“The HydroSED project is intended to address a knowledge gap. That gap is well explained in the Introduction to the attached Newsletter and the Objectives of the project are laid out in the next section” [the appellant provided a copy of a part-granted Newsletter]
“The standard water quality mitigations that the HydroSED Project is intended to assess are currently in use by the Forest Service of [the Department] and form the basis of forestry licence conditions in many, many licences. It is strongly in the public interest in terms of environmental protection that any potential weaknesses in the current mitigations are identified as quickly as possible. Those mitigations (predominantly in terms of setbacks from watercourses) are being used to produce Determinations under Article 6(3) of the Habitats Directive that the project will not give rise to any significant effect on European Site(s). Determinations under Article 6(3) must be demonstrated to a reasonable degree of scientific certainty. There is a lacuna in terms of the current science regarding mitigation to protect water quality in terms of forestry operations.”
“My request was made specifically to elicit information to inform submissions and appeals on forestry licencing. I cannot over-stress the importance of this work. [The Department’s Forest Service has] been operating for years with no validation of the standard conditions which they apply to protect water quality. The necessity of this work is long overdue.”
“I am involved in making appeals (in my own name and also in support of other parties) to the [Forestry Appeals Committee] against decisions of the Minister on forestry licences where the appeals include grounds in relation to issues of water quality. As an example - "There is no scientific rationale presented that the setbacks applied in the project will be effective in providing mitigation against impacts on water quality. Adherence to Standards is only acceptable where those Standards are based on verified science, not historic practice. The fact that [the Department] is currently funding a project (HydroSED) which is intended to validate its suite of mitigation measures indicates that no current validation exists for those setbacks."
“HydroSED is a publicly funded project; the public is paying for this research and should be entitled to access as much of the information as possible in as timely a manner as possible. The research is intended to either confirm that the existing mitigation is adequate or that changes need to be made.”
“The information sought is very important in terms of ensuring that there is a level playing field in terms of access to environmental [information] for the public in terms of public participation in the licencing process. The information is available to both [the Department] and at least to some extent to their forestry partners in this project. It is contrary to the public interest that the public is being denied access to the requested information.
“The project does not need to be completed for important preliminary conclusions to have been reached. The Habitats Directive is framed around the precautionary principle and the release of any information from this project which raises any doubts regarding the efficacy of the current standard mitigations is strongly in the public interest in terms of protecting the environment.”

35. During the course of this review, this Office’s Investigator wrote to the appellant regarding the relevance of article 9(2)(c) of the AIE Regulations (discussed in further detail in the Analysis and Findings section below) and to provide him with a final opportunity to comment.

36. The Investigator outlined her view that article 9(2)(c) of the AIE Regulations can apply both to information that is itself material in the course of completion or unfinished, and to information that, while not itself material in the course of completion or unfinished, sufficiently concerns material in the course of completion or unfinished information.

37. She noted that the case at issue has a particular factual scenario in that it relates to an ongoing academic research project funded by the Department, HydroSed. She outlined that she was of the view that there is material being actively worked on in respect of the academic research project. She stated her position that while some of the information at issue may be complete, all of the information at issue is sufficiently related to material in the course of completion, namely work on the academic research project, such that none of the information at issue can be said to be separate and independent pieces of work to that material in the course of completion. Accordingly, she indicated her view that all of the information at issue concerns material in the course of completion and article 9(2)(c) applies.

38. She also noted that while she considered there to be a public interest in the openness and transparency with regard to how public funds are used in respect of research and in the knowledge that is gained as a result of the topic of research being undertaken, she also considered there to be to be a strong public interest in ensuring that third level institutions have the ability to carry out research without interference and that academics have the freedom to undertake the research process without the need to prematurely defend or justify their work or have it undermined due to too early publication as a result of release under AIE. She noted her understanding that following completion of the project the final report will be published and made publicly available. Accordingly, she indicated her view that, having regard to the information at issue and the circumstances of the case at the present moment, the public interest in disclosure does not outweigh the interest served by refusal. She also stated her view that, given all of the information at issue concerns material in the course of completion, partial disclosure of the information is not possible.

39. The appellant replied to the Investigator’s correspondence. In response to the Investigator’s comment that “article 9(2)(c) of the AIE Regulations can apply both to information that is itself material in the course of completion or unfinished, and to information that, while not itself material in the course of completion or unfinished, sufficiently concerns material in the course of completion or unfinished information” he stated that “there are numerous decision[s] of the Commissioner relating to [a]rticle 9(2)(c). None of them would be consistent with your view as expressed.” He submitted “[a]rticle 9(2)(c) is not a means to provide a basis for blanket refusals relating to processes, including research. Just because the project is in progress does not mean that all of the information relating to the project is in progress.”

40. The appellant went on to state that “[i]t is the information requested which must be examined when assessing whether article 9(2)(c) applies, rather than any process to which the information relates.” He noted that this is paraphrased from the decision in OCE-135805-Z6Q3K5 (Mr F and Department of Agriculture, Food and the Marine). He noted that the same decision also includes “article 9(2)(c) requires an examination of the documents themselves, not of any related consultation process” and paragraph 32 of that decision states:

“The appellant argues that, by their nature, the documents constituting responses to the statutory consultation cannot be said to be material in the course of completion or unfinished as they are completed documents that have been submitted to the Department as part of a statutory consultation process. I agree with this submission. These documents have been submitted complete and finished for the Department’s consideration in the context of that process. Accordingly, as they constitute material that is complete and finished, they cannot be considered to fall under the exemption in article 9(2)(c) and the Department’s reliance on this provision in respect of them fails. This means that no consideration of article 10(3) in respect of them is necessary as the exempting article cannot be utilised to prevent their release.”

41. The appellant further stated “the CJEU has noted that the purpose of the exception concerning material in the course of completion or unfinished documents is “to meet the need of public authorities to have protected space in order to engage in reflection and pursue internal discussions”. He submitted that “[p]rogress [r]eports that have been submitted are complete. They have been submitted complete and finished and cannot be considered to fall under the exception in [a]rticle 9(2)(c). Once a methodology has been established and the project is running any reflection is consequent to the actual methodology, which is complete. The methodology does not fall under the exception of [a]rticle 9(2)(c).”

42. The remainder of the appellant’s reply contained the following comments:

No protected space is needed to pursue internal discussions on completed works.
UCD have already released some information in respect of this project.
A refusal under article 9 is discretionary.
If the AIE Regulations were intended to specifically protect academic work in progress this would be included as a specific category or basis for refusal. It is not.
An adverse effect must be demonstrated for [a]rticle 9(2)(c) to apply – this must be reasonably foreseeable and not purely hypothetical. No tangible adverse effect has been demonstrated by any of the parties – everything put forward is speculative.
The Investigator’s comments regarding “prematurely defending, justifying or not having work undermined appear to be an assumption on [the Investigator’s] part that I might be seeking this information in order to discredit it. This is purely a speculative position.”
There may be other exceptions that could apply to some of the information, but article 9(2)(c) read in the light of 10(4) can only apply to individual records which are in the course of completion.
Article 10 needs to be applied to any refusal under article 9(2)(c) so even if there is information that is in the course of completion the public interest must still be weighed before refusal can be justified.
European Law is predicated on the precautionary principle. The nature of the research being undertaken is to investigate the effectiveness of current protections used in forestry to prevent sediment release. There is a counter public interest argument that research may be indicating that current scenarios are not adequately protecting the environment and that the research is raising doubts regarding current levels of environmental protection. It would be in the public interest that research that is raising doubts regarding the efficacy of current protections is not excluded from the public domain.
A project may have formed conclusions on aspects of the project before the project is finally concluded.
The public interest must be weighed on each individual record, not on the process.

43. The appellant also stated that he had consulted with his legal advisor, who was of the same view.

UCD’s Position

44. In its submissions to this Office, UCD stated that it was, as noted in its internal review decision, refusing access to the information at issue under articles 9(1)(d) and 9(2)(c) of the AIE Regulations.

45. Regarding its refusal of the Project Proposal, UCD explained that the Project Proposal was submitted to the Department in order to secure funding. UCD stated that it and MTU are the Research Performing Organisations (RPOs) and that Coillte (representing the state forestry sector) and Green Belt Ltd (representing private forestry operators) are the non-funded industry partners.

46. UCD stated that the Project Proposal was only shared with the Department and the project partners. UCD explained that the Project Proposal outlines what the project proposes to investigate, how the project is to be undertaken, where and when the research is to be carried out, who is to be involved, and a breakdown of the estimated costs.

47. UCD stated that, as lead RPO, it has overall responsibility for the records and research to be carried out. It outlined its view that release of the Project Proposal would put UCD and the project at a serious disadvantage. It contended that release of such comprehensive elements as contained within the information into the public domain would leave the project, including the location sites, timeframes, risks, proposed changes, and anticipated deliverables at risk of being compromised. UCD also indicated that it is the Department’s position that release of this information should only take place when the project is complete and the final report published. UCD stated that release of the Project Proposal could affect its ability to obtain funding in the future.

48. UCD stated that, as noted in its internal review decision, methodologies in the Project Proposal (and referred to within the information at issue in File 2), are fundamental and in preparing the proposal, the project team considered a suite of integrated and complementary tasks to ensure a comprehensive and coherent programme of investigation. It stated that a structured and systemic scientific method was identified based on the expertise and knowledge of the project team. It noted that the records include information related to research yet to be carried out. It submitted that the premature release of this information would seriously disadvantage the project, UCD as a RPO, and the funding provider, in financial, competitive, and potentially commercial terms.

49. Regarding its refusal of the 6 Month Progress Report and Year 1 Progress Report, UCD stated that the reports were prepared by UCD for submission to the Department and the project partners. It stated that, in accordance with the provisions of the Project Proposal and the Collaboration Agreement, UCD, as lead RPO, is responsible, with input from all project partners, for the delivery of project tasks, deliverables and milestones. It explained that the reports contain detailed updates about the live and ongoing research being conducted and unfinished scientific data. UCD stated that this scientific data also, at the time, formed part of the degrees of three students (two PhD students at UCD and one Master’s student at MTU). It noted that the students concerned are conducting research with the data. It stated that early release of the information into the public domain, may lead to other parties deciding to use the data for their own benefit, which would seriously compromise the students’ degrees.

50. UCD outlined that, at the time of the request, the project data was not yet at a level suitable for the production of scientific papers and there were no preliminary findings. It stated that premature release of the data, which is subject to change over the course of the project, would have no significant meaning without the final findings and would be open to incorrect interpretation by other individuals, which could negatively impact the project itself. Additionally, in its internal review decision, UCD stated that on this basis, project data and project files contained within the information at issue in File 2 had also been refused.

51. UCD stated that, in accordance with the Department’s open access policy, accepted research publications which arise from research funded by the Department, subject to the copyright and archiving policies of the publisher, are to be made available at the earliest possible date through their institutional repository. It noted that the publisher’s embargo period should not normally exceed six months for scientific, technical and health science research publications. It outlined, however, that the protection of intellectual property must, in the first instance, take precedence over any form of publication and open access deposition. It stated that the reports are interim reports, purely for the purpose of updating the funder on the status of the project. It contended that those report do not fall within the scope of “accepted research publications.” It stated that the reports are not intended for publication at this time, but once the project has been completed (estimated date, 31 August 2024) and the publication accepted by the Department, it is expected that information will be publicly available.

52. UCD stated that it is important that it continues to be able to protect potential intellectual property generated through its research projects. It stated that in accordance with the Collaboration Agreement for the project, any intellectual property emanating from the project will be owned by the RPOs and access to industry parties will be via licensing, which shall be on fair commercial terms, subject to overall State Aid, technology transfer, and other legal or government policy considerations.

53. UCD stated that intellectual property will be managed in accordance with the National Intellectual Property Protocol and the project partners recognise the importance of ensuring that intellectual property developed in the project will be identified and protected as appropriate. It noted that the funding for the project is subject to UCD’s compliance with the Department’s terms and conditions. It stated that these terms and conditions provide as follows:

“Intellectual Property (IP) - Institutions shall adhere to the national IP policy “Ireland’s National IP Protocol 2019 – A Framework for successful Research Commercialisation” document: https://www.knowledgetransferireland.com/Reports-Publications/Ireland-s-National-IP-Protocol-2019-.pdf and any further revisions to national IP policy.”

54. UCD outlined that the National IP Protocol (the Protocol) provides:

“At Chapter 01 paragraph 3: Where commercially exploitable IP arises as a result of State funding for research and development, the opportunity shall be taken to commercialise the IP in all possible fields, applications and territories where it is consistent with achieving Ireland’s objectives.”

“At Chapter 01 paragraph 4: The purpose of this commercialisation, from Ireland’s point of view, is to maximise the economic and societal benefits and returns to Ireland from its public investment in research.”

“At Chapter 02 paragraph 27: The RPO shall be free to publish the results of its research, provided it first follows the procedures in place within the RPO to ensure, where appropriate, IP is properly protected before anything related to that IP is published.”

55. UCD stated that the Protocol imposes a positive obligation on RPOs to take steps to protect intellectual property developed from state funded research. It stated that an invention will only be patentable where certain conditions are met and principally, where the invention has not been disclosed anywhere in the world prior to filing a patent application. UCD outlined that it is essential therefore that particulars of an invention remain secret until such time as a patent is granted and early disclosure could jeopardise efforts to protect same. UCD noted that, similarly, the disclosure of potentially valuable technical information and know-how in the course of an ongoing project could adversely impact the development of intellectual property. It submitted that intellectual property does not only relate to inventions, patents etc., it can also relate to copyrighted works and technical know-how. UCD outlined that, as such, disclosure by it of the information sought, before the conclusion of the project, could result in a breach of the Protocol and thus, UCD would not be in a position to comply with the Department’s terms and conditions.

56. Additionally, in its internal review decision, UCD stated that disclosure of the information at issue would adversely affect intellectual property rights, outlining that release of records under the AIE Regulations is considered to be release to the world at large. It submitted that, accordingly, it must assume that release of information contained within the Project Proposal, the 6 Month Progress Report, and the Year 1 Progress Report, that is subject to intellectual property, could be commercially exploited or used in a way that would constitute an unauthorised infringement of the intellectual property rights.

57. Regarding its refusal of the information at issue in File 2, UCD noted that the information at issue, in particular within the newsletters and slides, also comprise detailed project data including project tasks, site instrumentation, site locations and site images.

58. In its internal review decision, UCD stated that in applying articles 9(1)(d) and 9(2)(c) of the AIE Regulations it considered articles 10(3) and 10(4) of the AIE Regulations. It noted that, in favour of release, it considered the following factors: the right of the public to have access to information; the need for an open, transparent and accountable public service; and the need for scrutiny of decisions. It noted that, against release, it considered the following factors: protecting the integrity of university processes; maintaining confidentiality of intellectual property rights, protecting unfinished research and material in the course of completion, and protecting the university’s ability to secure funding for similar projects. It stated that having weighed the factors concerned, it determined that the public interest would be best served by refusing access to the information. It noted that information on the HydroSED project can be found on publicly accessible websites, including the project website. It also directed the appellant to the Newsletters contained in File 2, which had been part-granted. It stated that the Newsletters provide an overview of the project and updates to date, without compromising actual project records.

59. UCD referred to article 10(6) of the AIE Regulations and noted that, once the research project is completed (estimated date, 31 August 2024), it is expected that information, subject to any copyright or intellectual property rights, will be publicly available.

60. In its submissions to this Office, UCD indicated that it was also refusing access, under article 9(1)(c) of the AIE Regulations, to: the Project Proposal, by reference to sections 30(1)(a) and 36(1)(b) of the Freedom of Information Act 2014 (the FOI Act); the 6 Month Progress Report and Year 1 Progress Report, by reference to sections 30(1)(a) and 39(1)(a) of the FOI Act; and to the information at issue in File 2, by reference to section 30(1)(a) of the FOI Act. It set out the text of the provisions concerned. For completeness, I would note that UCD refers briefly to section 30(1)(b) of the FOI Act, however then goes on to set out the text of section 30(1)(a) of the FOI Act. I have no reason to doubt that section 30(1)(a) of the FOI Act is the provision being relied upon.

61. Regarding its refusal of the Project Proposal, UCD stated that it is important that it continues to be able to secure financial support for its research projects. It stated that its funders hold the view that the information at issue should only be released when the project has been completed and final report published. It stated that release of its Project Proposal could affect its ability to attain funding in the future.

62. UCD stated that it is satisfied that section 36(2)(a) to (e) does not apply in this instance. UCD stated that, in accordance with sections 30(2) and 36(3) of the FOI Act, in favour of release, it considered the following factors: the right of the public to have access to information; the need for an open, transparent and accountable public service; the need for scrutiny of decisions; and enhancing accountability on issues of public expenditure. It noted that, against release, it considered the following factors: protecting the integrity of university processes; maintaining confidentiality of intellectual property rights; protection of unfinished research and material in the course of completion; and protection of the university’s ability to secure future funding for similar projects. It noted its view that on balance it is not in the public interest to release the Project Proposal as “there is a public interest in the protection of the integrity and confidentiality of research and for university researches being able to conduct programmes of scientific research effectively.”

63. Regarding its refusal of the 6 Month Progress Report, Year 1 Progress Report and the information at issue in File 2, UCD stated that the disclosure of potentially valuable technical information and know-how in the course of an ongoing project could adversely impact the development of intellectual property. It stated that premature release of the reports could also result in UCD breaching the Department’s terms and conditions, which, in turn, could affect UCD’s ability to attain funding in the future.

64. UCD stated that, in accordance with section 30(2) of the FOI Act, in favour of release, it again considered the following factors: the right of the public to have access to information; the need for an open, transparent and accountable public service; the need for scrutiny of decisions; and enhancing accountability on issues of public expenditure. It noted that, against release, it considered the following factors: protecting the integrity of university processes; maintaining confidentiality of intellectual property rights; protection of unfinished research and material in the course of completion; protection of the university’s ability to secure future funding for similar projects. It noted its view that on balance it is not in the public interest to release the proposal record (I assume that this is a typographical error and, given the context, UCD intended to refer to the reports and the information at issue in File 2) as “there is a public interest in the protection of the integrity and confidentiality of research and for university researches being able to conduct programmes of scientific research effectively.”

65. Notwithstanding that section 36 of the FOI Act had not been cited in the context its refusal of the 6 Month Progress Report, the Year 1 Progress Report, or the information at issue in File 2, UCD stated that it was satisfied that sections 36(2)(a) to (e) of the FOI Act did not apply and that it had considered the public interest test in section 36(3) of the FOI Act.

66. Regarding all of the records withheld in full, UCD stated that it considered article 10(5) of the AIE Regulations and found that it is “not possible to separate information which cannot be disclosed from that which can.”

67. In conclusion, UCD stated that it “believes it has demonstrated that release of the records at this time would expose the University and the research project to a serious disadvantage and breach of contract”.

Analysis and Findings

68. As indicated above, I am satisfied that UCD has refused access to all of the information at issue under articles 9(1)(c), 9(1)(d), and 9(2)(c) of the AIE Regulations and to some of the information at issue also under article 8(a)(i) of the AIE Regulations. In the circumstances of this case, I consider it appropriate to consider article 9(2)(c) of the AIE Regulations first, before proceeding to consider the remaining exceptions relied upon, if necessary.

Article 9(2)(c) of the AIE Regulations

69. As noted, UCD has refused access to all of the information at issue under article 9(2)(c) of the AIE Regulations. I am satisfied that the information at issue can generally be described as follows (see further detail in Appendix):

File 1: Project Proposal (85 pages) – The entire record is at issue. The record comprises the application for funding, which contains a number of different sections, including: Principal Investigator Details, Partner Details, Summary of Project Details, Project Information, Work Plan, Management Plan, Summary of Key Participants – RPO, Summary of Key Participants – Non-RPO, Existing Research Facilities, Consolidated & Summary Budget Tables, Budget Details RPOs, Equipment, Staffing, Justification of Grant-Aided Costs, Explanation of Cash and/or In-Kind Contributions, Project Coordinator Conflict of Interest and Declaration, Principal Investigator Declaration, Vice President of Research/Head of Research (within Lead Institution) Declaration, TTO (within Lead Institution) Declaration, References. Details regarding the type of information provided in the various sections can be seen in the Department’s 2019 Guidelines for Applicants . There is also other general information contained in the the 2019 Competitive Call for Research Proposals Call Specification .
File 1: 6 Month Progress Report (9 pages) – The entire record is at issue. This record comprises the 6 Month Progress Report, which contains a number of different sections, including Expenditure, Staff, Task Information, Summary (of problems encountered or anticipated and proposed measures to address these). The Project Management and Progress Reporting Guidelines available on the Department’s website , describe the 6 month report as a brief summary of progress for the six month period after the project start date and “should include, start date, staffing, tasks started and issues encountered to date. In certain circumstances more detail may be requested from the coordinator, this will be on a case-by-case basis”. Details regarding the type of information provided in the 6 Month Progress Reports at issue can be seen in the Project Management and Reporting Guidelines.
File 1: Year 1 Progress Report (27 pages) – The entire record is at issue. This is a full project progress report (PPR). It contains a number of different sections, including: Overview of Period under Review, Progress and Results Achieved on Tasks (broken down across different milestones/deliverables), Details of Modifications and Project Management, Outputs, Impacts and Knowledge Transfer. According to the Department’s Project Management and Progress Reporting Guidelines available on the Department’s website, the PPR is primarily intended to assist the Department in determining whether the project is on-schedule, is being carried out according to the approved proposal, and budget is being spent appropriately. The PPR captures details on the project for the period under review (including response(s) to previous PPR if applicable) and information cumulatively on the entire project. It contains a significant amount of information. Details regarding the type of information provided in the Year 1 Progress Report can be seen in the Project Management and Reporting Guidelines.
File 1: Attachments to Year 1 Progress Report (412 pages) – The entire record is at issue. This comprises supporting documentation for the Year 1 Progress Report.
File 2: Presentation Slides – full pack of 26 slides and 2 further slides, which give an overview of the project and tasks being undertaken, and a progress update.
File 2: Fieldwork Risk Assessment Template – Field work location data is at issue.
File 2: Email re. Insurance Letter – Financial value of the fieldwork equipment is at issue.
File 2: Newsletters – Project data, including fieldwork locations, graph, photographs, is at issue.
File 2: Letter re. Luggala Research Collaboration – Project data, including information regarding fieldwork, is at issue.
File 2: Email re. Update – Location data is at issue.

70. 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.

71. 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.

72. 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)

73. 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.

74. While Land Baden-Württemberg more specifically concerned the internal communications exception, 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).

75. 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.”

76. The first question I must consider 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”.

77. It is my 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, I do not consider this comment to be relevant to this appeal, which concerns a specific academic research project and not a decision-making process. I consider 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.

78. 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.

79. While some of the information at issue in this appeal is made up of raw data, I consider that this appeal is factually different to the scenario in ACCC/C/2010/53, which did not concern an ongoing academic research project.

80. 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.”

81. 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.”

82. In my view, notwithstanding that some of the information at issue in this case includes location data, the appeal before me and Roheline Kogukond MTÜ, can be distinguished on their facts. In contrast to Roheline Kogukond MTÜ, which solely concerned access to coordinates for permanent sample plots used for previous and future repeated data collection, this appeal concerns a wider variety of information, including location data, for ongoing research, that has an estimated completion date.

83. It is also important to note that I am not bound to follow previous decisions of the Commissioner and I must have regard to the facts of this particular case, which are considerably different to those in OCE-135805-Z6Q3K5 referred to by the appellant.

84. As stated above, I am satisfied that article 9(2)(c) of the AIE Regulations can be relied upon in circumstances beyond where the information itself is, for example, “material in the course of completion” or “unfinished data”, and can be relied upon where the information concerns “material in the course of completion” or “unfinished data”.

85. 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.

86. I consider that “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 data”, I am of the view that it is necessary to identify the data that is actively being collected, be able to explain why, and how, the information at issue concerns that data, and consider whether the information at issue is a separate and independent piece of work to that data – if the information at issue is a separate and independent piece of work, the exception will not be applicable. Whether 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.

87. The information at issue was identified by UCD as coming within the scope of the appellant’s request for “[a]ll environmental records relating to the ongoing HydroSED project”. As previously noted, according the HydroSED project website , it is a collaborative research project funded by the Department that seeks to assess the hydrological and sediment impacts of forest operations in Ireland.

88. Having examined the information at issue it is evident that, as contended by the appellant, the vast majority of it comprises seemingly complete records (e.g. proposal, progress reports, correspondence, newsletters, emails). However, what is relevant in this case is whether the information at issue concerns material in the course of completion and/or concerns unfinished documents or data. I wish to reiterate that while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the information at issue and the extent to which I can describe certain matters in my analysis is limited.

89. I can state that the information at issue shows that there are a significant number of tasks and deliverables that are required to be completed by the end of the research project, some of which have been completed, some of which are ongoing, and some of which (during the relevant period) had not yet being started. I am satisfied that all of those tasks and deliverables are intrinsically interlinked and that all of the information at issue is also intrinsically linked to those tasks and deliverables. I am also satisfied that, notwithstanding the time that has passed, some of the tasks and deliverables remain ongoing and there is material actively being worked upon. I am also satisfied that given the nature of the information at issue, although some of it is complete, none of it can be said to be separate and independent pieces of work to those tasks and deliverables that I am satisfied comprise material in the course of completion

90. In all the circumstances of this case, I am satisfied that there is a sufficient basis to conclude that all of the information at issue concerns material in the course of completion to the extent that it falls within the scope of the exception provided for at article 9(2)(c) of the AIE Regulations. It is important to note that this decision raises a novel issue. My Office has not previously considered access under the AIE regime to information regarding an ongoing academic research project. As such, all previous decisions under article 9(2)(c) of the AIE Regulations must be treated with caution. The appellant has relied on the approach this Office has taken in previous cases and argues that I am adopting a new, class based exemption here. To a certain extent I can understand the appellant’s position. However, this appeal is factually different from all of those cases in that the appellant is seeking all environmental records relating to a live academic research project.

91. However, that is not the end of the matter. As noted above, article 9(2)(c) must be read alongside article 10 of the AIE Regulations. It is necessary to weigh the public interest served by disclosure against the interest served by refusal, in accordance with article 10(3) and 10(4) of the AIE Regulations.

92. 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.

93. 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 “material in the course of completion, or unfinished documents or data”. 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 (and reiterated in Roheline Kogukond MTÜ), 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.

94. The HydroSed Project received funding following the Department’s 2019 Call for Research Proposals . According to the Call announcement, the Call invited eligible Research Performing Organisation (RPO’s) to submit collaborative research proposals directed at addressing current priority issues across four thematic areas that spanned the entire agri-food, forest, and bioeconomy sector:

Environment and Climate Smart Approaches to Agri-Food Systems
Animal and Plant Production, One Health and Welfare
Rural Growth, Digitalisation and the Bio-economy
Food

95. The Call announcement further explained that the Department has three “public good” competitive research funding programmes that cover the Food, Agriculture, and Forestry thematic areas. It briefly described the three programmes as follows:

“Food Institutional Research Measure (Food) aims to develop platform technologies that underpin a competitive, innovative and sustainable food manufacturing and marketing sector some of which can be further exploited through more industry facing public support programmes.
Research Stimulus Fund (Agriculture) aims to support sustainable and competitive agricultural production practices and policies, and contribute to building and maintaining a knowledge economy and research capability in the primary agriculture sector.
Programme of Competitive Forest Research for Development (Forestry) aims to develop a scientific foundation and support for a sustainable, competitive, market orientated and innovative forest industry.”

96. The Department’s table of research projects funded by DAFM Call 2010 onwards (as at date of this decision) available on the Department’s website sets out that the HydroSed project was awarded €597,505 and a summary of the project, as follows:

“HydroSed- Hydrological and sediment impacts of forestry operations in Ireland. Forestry remains a significant pressure in many watercourses at risk of not meeting their WFD status with sediment release being a recognised stressor in this regard. The recognition of these pressures highlights issues with the adequacy and/or implementation of good management forestry practices. This project assesses flow changes and sediment releases from different forestry operations (afforestation, harvesting, windrowing and reforestation) and the efficacy and performance of commonly adopted sediment mitigation measures. Seven forestry sites with adjacent or nearby lotic waterbodies covering three major soil types (peats, peaty mineral soils and mineral soils) have been identified for study. The study sites have been specifically chosen to reflect the significant role of private forest operators in meeting our national target of 18% forestry land cover by 2046 and where mineral soils as opposed to traditional peats (often in upland catchment fractions) are expected to increasingly underpin the establishment of new forests. Study sites will be extensively instrumented and continuously monitored over a three-year period for rainfall, river discharge and sediment input from the forest block using a ‘paired-catchment’ approach that will facilitate the direct assessment of changes in hydrology and sediment input from forestry activities, with potential influences from any confounding factors being kept to a minimum. Direct measurement of flow and sediment inputs at study sites will be complimented by measures and fingerprinting of deposited sediment in channel bed substrates and the impact of changes and inputs will be related to changed biological status downstream of forest sites. In adding value to the measured datasets, the project will also explore the development and parameterising of hydrological models for the study sites and the integration of LiDAR surveys and hyperspectral imaging as a possible means of assessing changes to forestry drainage networks and the longer-term performance of sediment control measures.”

97. Further details related to the 2019 funding call were set out in the Department’s 2019 Competitive Call for Research Proposals Call Specification and 2019 Guidelines for Applicants . There are reporting requirements in respect of funded projects with further information set out in the Department’s Project Management and Progress Reporting Guidelines which include details on the six month and annual reports that are required to be submitted.

98. I understand that the final report on the HydroSed project will be published and made publicly available. I also understand that there has been public dissemination of information during the course of the HyrdoSed project (e.g. on the project website, discussed on the radio/podcasts/X (twitter), at conferences etc). Furthermore, the Department’s Policy on Open Access outlines:

Recognising the key role that research, technology and innovation plays in developing a competitive, knowledge based, sustainable economy, DAFM’s Competitive Research Funding Programmes place great emphasis on the need for active and varied dissemination of the outputs of research. Acknowledging that Open Access enhances the free circulation of knowledge, ultimately expediting innovation, DAFM is supportive of the drive for openness and transparency in the Irish publicly funded research landscape.

DAFM is fully committed to ensuring that the research outputs from its Competitive Research Funding Programmes are made available to all potential end users including the food Industry, SMEs, farming organisations, farm advisory services, farming community, public sector & regulatory bodies, academia and civil society and thus supports the National Principles on Open Access Policy Statement.

DAFM’s Open Access Policy requires researchers in receipt of funding from DAFM’s Competitive Research Funding Programmes to comply with its Policy on Open Access, as follows:

1. Accepted peer-review research and scholarly publications (including conference proceedings and technical reports), which arise in whole or in part from research funded by DAFM, should, subject to the copyright and archiving policies of the publisher, be made available at the earliest possible date through their institutional repository (information on Irish Research institutional repositories is available through Rian, www.rian.ie). Publisher’s embargo period should not normally exceed six months for scientific, technical and health science research publications. Protection of Intellectual Property must, in the first instance, take precedence over any form of publication and indeed open access deposition.

2. Publications deposited in an institutional open access repository must contain a link from the deposited version to the publication site, a URL/DOI (Document Object Identifier) must be used.

3. In accordance with the National Principles on Open Access Policy Statement, where possible, research data (i.e. associated metadata and supporting documentation including any research monographs) supporting the publication should also be made available in an open access repository whenever feasible and linked to the associated publication where appropriate. European and national data protection rules must be taken into account in relation to research data, as well as concerns regarding trade secrets, confidentiality or national security.”

99. Having examined the information at issue, I am satisfied that its release would provide insight into the Department’s funding of research projects and how that process operates in practice, as well as HydroSed project itself and the work being undertaken. There is undoubtedly a strong public interest in the openness and transparency with regard to how public funds are used in respect of research projects and, as also contented by the appellant, in the knowledge that is gained as a result of the topic of research being undertaken.

100. However, it must also be noted that the exception provided for in article 9(2)(c) of the AIE Regulations is designed to protect the “private thinking space” of public authorities. In this instance, the exemption operates to allow for the carrying out of important research by third level institutions. There is also a strong public interest in ensuring that third level institutions have the ability to carry out research without interference in the terms under which any relevant grant has been received and that academics have the freedom to undertake the research process without the need to prematurely defend/justify their work or have it be undermined due to too early publication of relevant information to the world at large under the AIE regime. It is important to note that this is in no way, as suggested by the appellant, an assumption that he might be seeking this information in order to discredit it, rather it is concerned with the rigours of academic research and publication generally. I am conscious that the timing of release is relevant to this case and note UCD’s comments that the estimated date for completion of the project is 31 August 2024 and that following the completion of the project the final report will be published and made publicly available, which will include some of the information at issue. I am satisfied that release of the information at issue at this point in time would undermine the private thinking space required by the academics concerned to carry out their research. I find that the above considerations apply to all of the information requested, and therefore it is not necessary for me to individually analyse the public interest test in respect of all material requested.

101. In light of the particular information at issue and all the circumstances of this case, I conclude that the public interest in disclosure does not outweigh the interest served by refusal.

102. In accordance with article 10(5) of the AIE Regulations, I have considered whether information which, although held with information to which article 9(2)(c) applies can be separated from such information. While I note the appellant’s position, including his comments that “the public interest must be weighed on each individual record, not on the process” and notwithstanding any similar information that may already be in the public domain (e.g. whether on the project website, contained within the Department’s summary of research projects funded, discussed on the radio/podcasts/X (twitter) or at conferences etc) or previously released to him, given that all the information at issue concerns material in the course of completion, I am satisfied that partial disclosure of the information is not possible under the AIE Regulations. I have found that all of the information requested is covered by the exemption and release would undermine third level research. Partial release of information would have the same effect and is thus not possible.

103. Article 10(6) of the AIE Regulations requires a public authority “to inform the applicant of the name of the authority preparing the material and estimated time needed for completion” where a request is refused under “article 9(2)(c) because it concerns material in the course of completion”. Having regard to the information provided by UCD and its indication that the estimated date for completion of the HydroSed project is 31 August 2024, I am satisfied that it has complied with article 10(6) of the AIE Regulations.

104. In conclusion, I find that UCD’s decision to refuse access to all of the information at issue under article 9(2)(c) of the AIE Regulations was justified. In light of that finding, I am not required to go on and consider the applicability of the other exemption provisions relied upon.

Decision

105. Having carried out a review under article 12(5) of the AIE Regulations, I hereby affirm the UCD’s decision to refuse access to all of the information at issue under article 9(2)(c) of the AIE Regulations.

Appeal to the High Court

106. 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

Appendix

File 1 – Project Records

Subject (as per Schedule provided to appellant, where available)	Page Number(s) – Given by UCD	Page Number(s) – PDF Thumbnails on Redacted File Provided to Appellant	Page Number(s) – PDF Thumbnails on Unredacted File Provided to OCEI	Withheld in Full or in Part (and relevant comment provided by UCD on Schedule)
Project Proposal 2019R447 (85 pages)	N/A	N/A	N/A	Withheld in Full (Article 9 Ongoing research, unfinished data, confidential and protection of IP)
6 Month Progress Report submitted to DAFM (9 pages)	N/A	N/A	N/A	Withheld in Full (Article 9 Ongoing research, unfinished data, confidential and protection of IP)
Year 1 Progress Report Submitted to DAFM (27 pages)	N/A	N/A	N/A	Withheld in Full (Article 9 Ongoing research, unfinished data, confidential and protection of IP)
Attachments to Year 1 Project Report Submitted to DAFM (412 pages)	N/A	N/A	N/A	Withheld in Full (not specifically identified on Schedule)

File 2 – Correspondence Records

Subject (as per Schedule provided to appellant, where available)	Page Number(s) – Given by UCD	Page Number(s) – PDF Thumbnail on Redacted File Provided to Appellant	Page Number(s) – PDF Thumbnails on Unredacted File Provided to OCEI	Information at issue	Withheld in Full or in Part (and relevant comment(s) provided by UCD on Schedule)
Fieldwork Risk Assessment Template	12	14	14	Redacted information re. “Location of fieldwork”	Withheld in Part (Article 8 Personal Information of Others)
Re_Insurance Letter	23	25	25	Redacted information re. financial data	Withheld in Part (Article 9 Financial information)
As above	24	26	26	Redacted information re. locations	Withheld in Part (Article 8 Personal Information of Others)
Newsletters 1 and 2	59	61	61	Redacted information re. project data, including locations and photographs	Withheld in Part (Article 9 Project data including locations and images)
As above	60	62	62	Redacted information re. project data, including locations and graph	Withheld in Part (Article 9 Project data including locations and images)
As above	62	64	64	Redacted information re. project data, including locations and photograph	Withheld in Part (Article 9 Project data including locations and images)
Letter re: Research collaboration between UCD HydroSED project Luggala Estates Ltd.	70	72	72	Redacted information from “existing research in” to end of letter	Withheld in Part (Article 9 Project data) – all redactions from “existing research in” to end of letter
Duplicate of page no. 70 above	80	82	82	Redacted information from “existing research in” to end of letter	Withheld in Part (Article 9 Project data) – all redactions from “existing research in” to end of letter
Slides for HydroSED Meeting 07/06/22	81 – 106	N/A	83 – 108	All slides	Withheld in Full (Article 9 Project data)
Slides for HydroSED Meeting 200622	109 -110	N/A	111-112	All Slides	Withheld in Full (Article 9 project data)
Fwd_Update from HydroSed	112	104	114	Redacted information re. locations in email 13 July 2022	Withheld in Part (Article 8 Personal Information of others)
Re_Update from HydroSED	130	104	132	Redacted information re. locations in email 13 July 2022	Withheld in Part (Article 9 Project data)
Fieldwork Risk Assessment Template	N/A	107	135	Redacted information re. “Location of fieldwork”	Withheld in Part (Article 8 Personal Information of Others)