Decision
Ms X and Laois County Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-109805-R1Y4S8
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-109805-R1Y4S8
Published on
Whether the Council was justified in refusing access to further relevant information relating to Parts 1, 2, 4, 5, 7, 9, and 10 of the appellant’s request under article 7(5) on the AIE Regulations and in refusing access to Record 8 identified as relevant to Part 5 on the basis that it is not environmental information and, if it is, under articles 8(a)(iv) and 9(1)(c) of the AIE Regulations.
14 November 2025
1. On 20 February 2021, the appellant submitted a request to the Council “for access to environmental information relating to a development in Clonaslee, County Laois which was granted planning permission on 21 June 2019 under reference 18/755. The application included a parcel of land in the ownership of Laois County Council within the red line with consent to make the application indicated in a letter from Laois County Council dated 6 December 2018 (Annex 1). A letter on the planning file indicates that access was needed through the Hill View Estate with the applicant agreeable to use part of the site as public amenity in lieu of gaining access onto this estate. A revised map dated 9 April 2019 submitted following a further information request identifies the council lands in yellow which are to be swapped for the developer’s lands in green (see Annex 2). There is also a note of a representation on the planning file from Cllr Seamus McDonald but there appears to be no record of the substance of the representation (Annex 3). I make the following request.
1. Copies of all valuations or other financial or economic appraisals in relation to the land swap to include valuations or other financial or economic appraisals of the land disposed of and the land acquired.
2. Copies of all agreements or Memoranda of Understanding between the Council and the developer including: (a) Any Memorandum of Understanding or letter of intent or similar in relation to the land sway (b) Contract(s) for sale for all the land transfers (c) Deed(s) of transfer in each case (d) Confidentiality agreements in relation to the above. (e) Grant of right of way over Hill View Estate or any part of it.
3. Copy of the folio and plan showing the Council’s ownership of any land acquired pursuant to the land swap arrangement. A copy of the ground truth survey and all mapping used in the compilation of various mapping for the purpose of the conveyance process and application for registrations.
4. A copy of the topographical survey, before and after, complete with statement of area that was used to inform the area calculation for the land swap.
5. All correspondence between the Council and John Rowney and/or Tinnahinch Construction Limited in relation to the land swap.
6. Confirmation of the actual amounts received by Laois County Council in relation to the cash deposit required by condition 16 of the planning permission (18/755)
7. A copy of the bond required under condition 16 including each annual review.
8. Confirmation of the actual development contribution amounts received by Laois County Council under condition 18 of the planning permission
9. Details of the substance of the representation made by Cllr McDonald.
10. In relation to the procedure under section 211 of the Planning and Development Act 2000 and Section 183 of the Local Government Act 2001 relating to the disposal of land held by a local authority: (a) The basis under section 211 for the disposal (b) The notice of particulars sent to the members under section 183(1)(a) (c) The resolution under section 183(1)(b) (d) Any consent of the Minister under section 211(2) and section 183(1)(f).”
2. On 19 March 2021, the Council applied an extension under article 7(2)(b) of the AIE Regulations.
3. On 22 April 2021, the Council issued its original decision. It stated that that it had identified one record that was publicly available and referred to article 7(3)(a)(i) of the AIE Regulations
1. Regarding Part 1 of the appellant’s request, the Council stated that it was refusing access on the basis that the information is not environmental information.
2. Regarding Part 2 of the appellant’s request, the Council stated that it was refusing access under article 7(5) of the AIE Regulations.
3. Regarding Part 3 of the appellant’s request, the Council stated that it was refusing access to the first part on the basis that it is not environmental information and was refusing access to the second part under 7(5) of the AIE Regulations.
4. Regarding Part 4 of the appellant’s request, the Council stated that it was refusing access under article 7(5) of the AIE Regulations.
5. Regarding Part 5 of the appellant’s request, the Council stated that it was refusing access on the basis that it is not environmental information.
6. Regarding Part 6 of the appellant’s request, the Council stated that it was granting this by giving the sum of the cash bond deposit.
7. Regarding Part 7 of the appellant’s request, the Council stated that it was refusing access under article 7(5) of the AIE Regulations.
8. Regarding Part 8 of the appellant’s request, the Council stated that it was granting this by giving the sum of the development contribution.
9. Regarding Part 9 of the appellant’s request, the Council stated that it was refusing access under article 7(5) of the AIE Regulations, however provided a link to where a letter of representation could be viewed online.
10. Regarding Part 10 of the appellant’s request, the Council stated that it was refusing access to part (b) on the basis that it is not environmental information, refusing access to parts (a) and (d) under article 7(5) of the AIE Regulations, and providing part (c) by way of a link to a record publicly available under article 7(3) of the AIE Regulations.
4. On 4 May 2021, the appellant sought an internal review of the Council’s decision. In doing so, the appellant contended that adequate searches had not been carried out. She also made further submissions regarding the specific parts of her request, which are summarised below:
1. Regarding Part 1, she disputed that the information is not environmental information and also that any information relating to that part was in the public domain.
2. Regarding Part 2, she disputed the Council’s reliance on article 7(5) of the AIE Regulations.
3. Regarding Part 3, she disputed that the first part is not environmental information and she asked that the information relating to the second and third parts be made available as soon as the surveying is complete.
4. Regarding Part 4, she disputed the Council’s reliance on article 7(5) of the AIE Regulations.
5. Regarding Part 5, she disputed that the information is not environmental information.
6. Regarding Part 6, she stated that this is not appealed.
7. Regarding Part 7, she disputed the Council’s reliance on article 7(5) of the AIE Regulations.
8. Regarding Part 8, she stated that this is not appealed.
9. Regarding Part 9, she disputed the Council’s reliance on article 7(5) of the AIE Regulations.
10. Regarding Part 10, she disputed that part (b) is not environmental information and disputed the Council’s reliance on article 7(5) of the AIE Regulations in respect of parts (a) and (d) and on article 7(3) of the AIE Regulations in respect of part (c).
5. On 3 June 2021, the Council issued its internal review decision.
1. Regarding Part 1, the Council varied its decision. It stated that it had identified one relevant record (Record 2) and was part-granting access, withholding certain information contained therein on the basis that it is not environmental information.
2. Regarding Part 2, the Council affirmed its refusal under article 7(5) of the AIE regulations.
3. Regarding Part 3, the Council affirmed its refusal of the first part (folio and plan), however did so under article 7(5). The Council also affirmed its refusal of the second part (survey) under article 7(5) of the AIE Regulations. In respect of the third part (mapping) it stated that it had identified one relevant record (Record 7) and was granting access to mapping information contained therein.
4. Regarding Part 4, the Council affirmed its refusal under article 7(5) of the AIE Regulations.
5. Regarding Part 5, the Council varied its decision. It stated that it had identified six relevant records (Records 3, 4, 5, 6, 7, 8). It stated that it was refusing access to 4, 5, and 6 on the basis did not consider the records to be environmental information. It stated that it was part-granting access to records 3 and 7 under article 8(a)(i) and refusing access to record 8 under article 9(1)(c) of the AIE Regulations.
6. Regarding part 6 – not appealed.
7. Regarding Part 7, the Council affirmed its refusal under article 7(5) of the AIE Regulations.
8. Regarding Part 8 – not appealed.
9. Regarding Part 9, the Council affirmed its refusal under article 7(5) of the AIE Regulations, however specified the title of the letter of representation and the acknowledgement of that letter available online.
10. Regarding Part 10, the Council affirmed its refusal under article 7(5) in respect of part (a). The Council varied its decision in respect of part (b). It stated that it had identified one relevant record (record 7) and was part-granting access under article 8(a)(i) of the AIE Regulations. The Council affirmed its reliance on article 7(3) of the AIE Regulations in respect of part (c). The Council affirmed its refusal of part (d) under article 7(5) of the AIE Regulations.
6. On 2 July 2021, the appellant submitted an appeal to this Office. In correspondence with this Office she stated that Parts 3, 6, and 8 are not appealed. The Council, in initial correspondence with this Office the Council stated that it was also relying on article 8(a)(iv) to refuse access to the information withheld from Records 3 and 7; indicated that it was no longer refusing access to Record 8 under article 9(1)(c), however it considered it not to be environmental information and, if it were it was refusing access to that record under article 8(a)(iv) of the AIE Regulations (the third party consulted by this Office indicated that it also did not consider the record to be environmental information, however, if it were, it considered that article 9(1)(c) of the AIE Regulations applied); and indicated that while it considered Records 4, 5, and 6 not to be environmental information, if it were, it was refusing access to those records under articles 8(a)(i) and 8(a)(iv) of the AIE Regulations.
7. In further correspondence the Council also submitted that if the information in Record 2 was environmental information, it was refusing access under article 8(a)(i) of the AIE Regulations; that certain information in Records 5 and 8 was outside the scope of the appellant’s request on the basis it concerned other matters; and clarified that it was, in fact, also relying on article 9(1)(c) of the AIE Regulations to refuse access to information within Record 8 if it were to be considered environmental information.
8. The Commissioner for Environmental Information has a power under article 12(9)(a) of the AIE Regulations to refer any question of law arising in an appeal to the High Court for determination. In November 2021, my predecessor used this power to refer a question to the High Court in another appeal (Coillte Teoranta and People Over Wind), seeking the High Court’s guidance on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent they involved an interplay with the Freedom of Information Act 2014. As this appeal raised identical legal issues, it was not possible to progress this case until the Court provided its legal guidance. As such, this appeal was placed on hold pending the receipt of the Court’s decision. The High Court issued its judgment on 28 April 2023 and it is available at 2023 IEHC 227 . This appeal was subsequently reactivated.
9. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Council and the appellant, as outlined above, and to correspondence between this Office and both the Council and the appellant. I have also examined the content of the records 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
10. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
11. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
12. Having regard to the “Background” section above, I am satisfied that the Council is refusing access to:
1. certain information in Record 2 identified as relevant to Part 1 on the basis that it is not environmental information however, if it is, under article 8(a)(i) of the AIE Regulations;
2. certain information in Record 3 identified as relevant to Part 5 and Record 7 identified as relevant to Parts 3, 5 and 10(b) under articles 8(a)(i) and 8(a)(iv) of the AIE Regulations;
3. Records 4, 5 (information contained therein coming within scope), and 6 identified as relevant to Part 5 on the basis that they are not environmental information, however if they are under articles 8(a)(i) and 8(a)(iv); and
4. Record 8 (information contained therein coming within scope) identified as relevant to Part 5 on the basis that it is not environmental information and, if it is, under articles 8(a)(iv) and 9(1)(c) if the AIE Regulations.
13. The appellant made submissions disputing all of the above and noting that further information relevant to her request ought to exist. However, in a subsequent email to this Office she also stated “It is not my desire to seek any personal information but all information that relates to the land, what happened on and to the land at all stages.”
14. Records 2 , 3, and 7 were part-granted to the appellant.
15. Regarding Record 2, in its internal review decision, the Council noted that the redacted information relates to the name of the purchaser’s legal advisor. While I note that there appears to be two redactions on the copy of the unredacted record provided to the appellant, having examined the clean record, I am satisfied that the only information redacted is the name of the purchaser’s legal advisor on the first page of the record. There is a black mark on the second page, however I am satisfied no information is, in fact, redacted. In its submissions on Record 5 (discussed further below), which contains details of the purchaser’s legal representative, the Council also noted that it contains information that shows that they also work on other matters for the purchaser, including matters which the Council considers may be personal.
16. Regarding Record 3, in its internal review decision, the Council noted that the redacted information is contact and other details related to the purchasers. Having examined record 3, I can confirm that the name of an individual and what appears to be a personal email address of the purchase comprise the only information withheld.
17. Regarding Record 7, in its internal review decision, the Council noted that the redacted information is personal information. Having examined record 7, I can confirm that the name of an individual is the only information withheld.
18. Given that the very small amount of information redacted from Records 2, 3 and 7 comprises the names of individuals, what appears to be a personal email address, and the name of the purchaser’s legal representative that also works on other matters for the purchaser, and given the appellant’s comment “It is not my desire to seek any personal information but all information that relates to the land, what happened on and to the land at all stages” , I am satisfied in finding that this information falls outside the scope of this review, notwithstanding the appellants earlier submissions and that I have not made a determination as to whether the information is environmental information where relevant, or as to whether article 8(a)(i) of the AIE Regulations, which deals with personal data and is subject to article 10 of the AIE Regulations, does/does not apply to that information.
19. Records 4, 5, and 6 were refused in full to the appellant.
20. Regarding Records 4, 5, and 6, in its internal review decision, the Council noted that the records are of email correspondence between the Council and the purchaser in relation to obtaining details of their legal representatives. As noted above, in its submissions on Record 5, which contains details of the purchaser’s legal representative, the Council also noted that it contains information that shows that they also work on other matters for the purchaser, including matters which the Council considers may be personal. I am satisfied with the Council’s position that the detail relating to the other matter referenced in Record 5 falls outside the scope of the appellant’s request. Having examined the remainder of Records 4, 5, and 6, I note that they are very short emails between the Council and the purchaser, simply seeking, providing, and acknowledging receipt of the purchaser’s legal representative’s details. These records were identified by the Council as relevant to Part 5 of the appellant’s request, “[a]ll correspondence between the Council and John Rowney and/or Tinnahinch Construction Limited in relation to the land swap”. However, while I note that the appellant sought “all correspondence”, I am satisfied that in this particular case the emails are purely administrative and contain no substantive content about the land swap. I find, therefore, that they fall outside the scope of Part 5 of the appellant’s request and the scope of this review. Furthermore, as already outlined above, I also am satisfied in finding the information concerning the details of the purchaser’s legal representative falls outside the scope of this review on the basis that the legal representative also works on other matters for the purchaser and given the appellant’s comment “It is not my desire to seek any personal information but all information that [sic] relates to the land, what happened on and to the land at all stages”.
21. Regarding Record 8, during the course of the review, the Council submitted that a small amount of information in the cover email within that document from the purchaser’s solicitor to the purchaser fell outside the scope of the appellant’s request. Having examined the record, I disagree and consider the entirety of Record 8 to be within scope.
22. Any information that may exist that post-dates the appellant’s request falls outside the scope of this review. Furthermore, while the scope of an appellant’s request can be narrowed, it cannot be expanded – this was explained to the appellant in respect of certain issues raised during the course of this review.
23. Having regard to the details set out above in the Background section, I am satisfied that the scope of this appeal concerns whether the Council was justified in refusing access to further relevant information relating to Parts 1, 2, 4, 5, 7, 9, and 10 of the appellant’s request under article 7(5) of the AIE Regulations and Record 8 identified as relevant to Part 5 on the basis that it is not environmental information and, if it is, under articles 8(a)(iv) and 9(1)(c) if the AIE Regulations.
24. 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 this decision.
25. 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. During the course of this review, the Council’s solicitor was consulted as a third party.
27. While I am required by article 12(5)(b) to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the information at issue and the extent to which I can describe certain matters in my analysis is limited.
28. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
29. In its original and internal review decisions, the Council noted that it had contacted the Property Management Section in respect of Parts 1 to 5 and Part 10 (b), (c), and (d) of the request; contacted the Housing Department in respect of Part 5; and contacted the Planning Department in respect of Parts 6 to 9 and Part 10(a) of the request. Regarding particular parts of the request the Council made further comments detailed below.
- Regarding Part 2 (a)-(e) of the request, the Council stated that the Property Management Section advised that the Council does not hold any relevant records and that the lands relating to the swap had not yet been registered and the process was ongoing. The Council stated that, at the time of the request, there were no records in relation to a memorandum of understanding, or letter of intent or similar in relation to the land swap. In addition, the Council did not have any contracts for sale, deeds of transfer, confidentiality agreements or grants of right of way over Hill View Estate or any part of it with or from the developer.
- Regarding Part 4, the Council stated that the Property Management Section advised that the Council does not hold a record of topographical survey having been carried out. The Council explained that it surveyed the lands in question and measurements were taken using a wheel and tape. It stated that all measurements were consistent on the ground with the relevant remaining structures/services on the ordinance survey maps.
- Regarding Part 5, the Council noted that records 3, 4, 5, 6, 7, and 8 were identified.
- Regarding Part 7, the Council stated that the Planning Department advised that no bond was required in this instance as the developer paid the cash deposit in full prior to the works commencing. The Council also stated that there is no agreement in place in respect of Condition 16 of the planning permission.
- Regarding Part 9, the Council stated that the Planning Department advised that a copy of Cllr Seamus McDonald’s letter of representation is available to view online (link provided) and no other details are held by the Council in relation to same. The Council stated clarified that the documents available are (1) a letter dated 11 February 2019 from Cllr. McDonald and (2) a letter dated 14 February 2019 to Cllr McDonald acknowledging same.
- Regarding Part 10(a) of the request, the Council stated that the lands were disposed of under Section 183 of the Local Government Act 2001 (as amended) and not under Section 211 of the Planning and Development Act 2000 (as amended).
- Regarding Part 10(c) of the request, the Council stated that the Property Management Section stated that the Minutes of the Council Meeting related to that part. It noted that the resolution of the Council and the terms under which the land swap was approved are contained in the Minutes of the Council Meeting held on 29 September 2020.
- Regarding Part 10(d) of the request, the Council stated that the Property Management Section has advised that there was no consent required of the Minister under Section 183 or Section 211(2) in this instance. The Council noted that it proceeded with the land swap in accordance with Section 183 of the Act. Section 221 of the Planning and Development Act 2000 as amended provides that the consent of the Minister is required “in a case where the price or rent, or what is obtained by the local authority on the exchange is not the best reasonably obtainable.” In this instance, the lands which were the subject of the swap were similar in size and in that regard the Council were satisfied that the exchange represented the best reasonably obtainable. The consent of the Minister was not required or sought.
30. In her internal review request, the appellant stated “The extent of your searches is noted, but for completeness I do not accept that adequate searches are done. In my view searches and enquiries should be made with all relevant Council Departments for all information requested including for example finance, property management, legal department, the Chief Executive’s office etc. It appears to me that adequate searches have not been conducted. The internal reviewer should ensure that full searches are carried out covering all categories of information and in all areas of the Council”. She also explained why she considered further information relevant to different parts of the request should exist. In its internal review decision, the Council provided some of the explanations detailed above regarding the different parts in response to the appellant. It also confirmed that the Departments referred to by the Decision Maker were the relevant Departments and that it was satisfied that “no other Departments in the Council would hold records relevant to this request.” In her submissions to this Office, the appellant made further contentions to this Office regarding the information she considered ought to exist. While I will not repeat them in full here, I confirm that I have had regard to them.
31. During the course of this review, further to the detail set out above the Council made submissions to this Office, which included the comments below:
- The Council noted that a valuation was identified (Record 2) that was carried out by a valuer on the instructions of the purchaser’s legal advisors. The Council explained that it did not arrange for any valuations to be carried out nor did it request the purchaser or their legal representatives to carry out any further valuations. It stated that in addition, no other valuations were submitted by the purchaser or their legal advisor to the Council.
- The Council stated that it does not have any guidelines or procedures in place in relation to the negotiation of a land swap transaction. In respect of the types of documents that would be made available to elected members in relation to a transaction such as the one at issue in advance of a resolution being passed by the elected members, the Council stated the disposal of land is a reserved function of the Council i.e. the Members must pass a resolution agreeing to the disposal. The Council explained that the legislation, i.e. Section 183 of the Local Government Act 2001, as amended also provides that Members may resolve not to dispose of lands and it is only after the Members have consented to a land disposal can the legal process commence as it would be premature and without the required consent to do otherwise. The Council referred to Record 7, noting that this is the notification that issued to the Members.
- The Council stated that on 5 May 2021 (after the date of the appellant’s request), it received the following from its Solicitors: (1) Deed of Exchange, (2) Declaration under Section 72 of the Registration of Title Act 1964, and (3) Declaration under the Family Home Act 1979 as amended. It stated that these documents were signed and sealed by the Council on the 10 May 2021 and returned to the Solicitors on 25 May 2021.
- The Council stated that no records were destroyed in relation to this file. The Council reiterated that the Housing, Planning, and Property Management sections were the relevant departments. The Council stated that the Planning Department dealt with the planning application and the swap was dealt with by the Property Management Department and Housing Department. The Council identified two staff members in the Housing Department that dealt with the planning application, two staff members in the Property Management Department that dealt with the land swap, and a staff member in the Planning Department that dealt with queries the regarding the bond and representations by Cllr. McDonald. The Council stated that the sections carried out searches of both their electronic and hard copy files including emails in order to identify the records/information sought.
32. The general thrust of the Council’s position is that it holds no further relevant environmental information. I wish to emphasise that it is outside my remit to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. I have no role in assessing how public authorities collect, maintain and disseminate environmental information. My role concerns reviewing appeals of requests for access to environmental information, which is held by or for the relevant public authority and no more than that.
33. Having considered the explanations by the Council in both its decisions and submissions to this Office, I am satisfied that the Council has taken adequate steps to identify and locate all relevant information held by it in this particular case. Accordingly, I find that article 7(5) of the AIE Regulations applies and the Council was justified in refusing access to further relevant information relating to Parts 1, 2, 4, 5, 7, 9, and 10.
34. The Council is refusing access to Record 8 on the basis that it is not environmental information and, if it is, under articles 8(a)(iv) and 9(1)(c) if the AIE Regulations. Record 8 contains an email from the purchaser to the Senior Executive Engineer forwarding an email from the purchaser’s solicitor to the purchaser attaching an invoice which was sent from the Council’s solicitor to the purchaser’s solicitor in relation to the land swap.
35. In its submissions to this Office, the Council submitted that Record 8 is not environmental information under the AIE Regulations. It stated that it considered the land swap to be an activity/measure likely to affect the environment “as the swap was required in connection with the development of the housing estate” within paragraph (c), however submitted that Record 8 is not information that is “on” that activity on the basis that it is too remote.
36. In its submissions to this Office the Council’s solicitor, who was consulted as a third party, also submitted that Record 8 is not environmental information under the AIE Regulations. It noted that Record 8 includes an invoice in respect of legal services provided for the conveyancing work.
37. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is “environmental information”. In line with Article 2(1) of the AIE Directive, article 3(1) of the AIE Regulations provides that "environmental information" means: "any information in written, visual, aural, electronic or any other material form on –
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c). "
38. In addition, there are a number of judgments of the Superior Courts, which deal with the definition of environmental information; Minch v Commissioner for Environmental Information [2017] IECA 223 (Minch), Redmond & Anor v Commissioner for Environmental Information & Anor [2020] IECA 83 (Redmond), Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020] IEHC 190 (ESB No. 1), Right to Know v Commissioner for Environmental Information & RTÉ [2021] IEHC 353 (RTÉ) and Electricity Supply Board v Commissioner for Environmental Information [2024] IEHC 17 (ESB No. 2). There are also decisions of the European Court of Justice in case C-316/01 Glawischnig v Bundesminister für Sicherieit und Generationen (Glawischnig) and case C-321/96 Wilhelm Mecklenburg v Kreis Pinneberg - Der Landrat (Mecklenburg), and the Court of Appeal of England and Wales in Department for Business, Energy and Industrial Strategy v Information Commissioner [2017] EWCA Civ 844 (Henney) (which is referenced in the decisions in Redmond, ESB No. 1, RTÉ and ESB No. 2); and the decision of the UK Upper Tribunal in Department for Transport, DVSA and Porsche Cars GB Ltd v Information Commissioner and John Cieslik [2018] UKUT 127 (AAC) (Porsche).
39. According to national and EU case law, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB No. 1 at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU. However, the right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition.
Identification of a measure or activity
40. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB No. 1 at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
41. This case concerns a land swap / disposal, which the Council stated took place in accordance with section 183 of the Local Government Act 2001 (as amended). I am satisfied that a land swap / disposal is an activity within the meaning of paragraph (c).
Whether the measure or activity is affecting, likely to affect or designed to protect the environment
42. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that “something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the “general and unlimited right of access” that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive)” (paragraph 63).
43. It is also important to note that an intervention that does not constitute or is not likely to lead to “development” – in the sense in which that term is generally understood in the context of planning and environmental law – may nonetheless constitute a measure or activity “affecting or likely to affect the environment” and that inaction or omission may affect the environment as much as positive development (Redmond, at paragraph 12). Furthermore, the actual outcome of a measure or activity is irrelevant. In this respect, I note the analysis of Hogan J in Minch at paragraph 40 of his judgment.
44. As noted, in its submissions to this Office, the Council stated that it considered the land swap to be an activity/measure likely to affect the environment “as the swap was required in connection with the development of the housing estate”. The land has exchanged hands. In my view, it is evident that there is a real and substantial possibility that the land swap / disposal will affect the environment, regardless of any subsequent action taken or not taken in respect of the land (i.e. regardless of whether or not it “was required in connection with the development of the housing estate”).
45. I find, therefore, that the land swap / disposal is an activity likely to affect the environment.
Whether the information sought is “on” the relevant measure or activity
46. As “any information … on” a measure or activity affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information “on” such a measure (Redmond at paragraphs 57 and 59). As the High Court outlined in its decision in the ESB No. 1 case, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB No. 1, referring to paragraph 37 in Henney). The question as to whether information is “on” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure” (at paragraph 48).
47. Importantly, while Henney uses the terms “critical”, “fundamental” or “integral”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
48. I note the purposive test as articulated in Henney. The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and AIE Directive (see Redmond at paragraph 99). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99). The test set out in Henney was also explicitly endorsed by the High Court in the RTÉ case (see paragraph 52) and is also referenced in the recent ESB No. 2 judgment.
49. The Council submitted that Record 8 is “too remote” from the land swap to be information “on” the land swap. In this case, the activity identified is the land swap / disposal, which is likely to affect the environment. The question to be considered is whether Record 8 is sufficiently connected to the land swap / disposal. Record 8 contains an email from the purchaser to the Senior Executive Engineer forwarding an email from the purchaser’s solicitor to the purchaser attaching an invoice which was sent from the Council’s solicitor to the purchaser’s solicitor in relation to the land swap. The third party noted that the invoice is in respect of legal services provided for the conveyancing work. I am satisfied that Record 8 comprises emails and the invoice related to conveyancing work that was required in to undertake the land swap / disposal.
50. As noted above, information may not be “on” a relevant activity or measure if it is not consistent with or does not advance the purpose of the Aarhus Convention and the AIE Directive;
• “Recognizing that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns” (paragraph 9 of the Preamble to the Aarhus Convention)”
• “Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment” (paragraph 10 of the Preamble to the Aarhus Convention)
• “Increased public access to environmental information and the dissemination of such information contribute to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment.” (Recital 1 of the AIE Directive)
51. The land swap / disposal clearly has an environmental effect. In my view, public access to information relating to the costs involved for conveyancing work that was required to undertake the land swap / disposal would contribute to the accountability and transparency of the land swap /disposal, giving the public a greater awareness of the activity. Accordingly, it would be in line with the purpose of the Aarhus Convention, as set out at paragraphs 9 and 10 of the Preamble, and the AIE Directive, as set out in Recital 1, in particular, contributing to greater awareness of environmental matters.
52. In all the circumstances, I find that Record 8, which comprises emails and the invoice related to the conveyancing work, amounts to information “on” the land swap / disposal, an activity which is likely to affect the environment.
Conclusion regarding the status of Record 8
53. In conclusion, I find that Record 8 is environmental information within the meaning of paragraph (c) of the definition in article 3(1) of the AIE Regulations. In light of this finding, it is not necessary for me to consider whether Record 8 also falls within other paragraphs of the definition.
54. I will now consider if any of the exemptions applied are satisfied. I will assess article 9(1)(c) of the AIE Regulations prior to considering article 8(a)(iv), if necessary.
55. As noted above, Record 8 contains an email from the purchaser to the Senior Executive Engineer forwarding an email from the purchaser’s solicitor to the purchaser attaching an invoice which was sent from the Council’s solicitor to the purchaser’s solicitor in relation to the land swap.
56. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. Articles 9(1)(c) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations, provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. I am satisfied that article 10(1) does not apply in this case.
57. 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.
58. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states: “The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it.” (paragraph 12.4)
59. When relying on article 9(1)(c) of the AIE Regulations a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, would be adversely affected by disclosure of the information at issue. The public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The adverse effect on its legitimate economic interest must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
60. In its internal review decision, the Council stated that Record 8 is refused under article 9(1)(c) of the AIE Regulations by reference to section 36(1)(b) of the FOI Act 2014. Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant access if the record concerned contains financial, commercial, scientific, technical or other information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation.
61. The Council stated that Record 8 is considered to be financial and other information relating to the purchaser and others which, if disclosed could result in material financial loss to those parties. The Council stated that the reasons for denying access outweigh the public interest arguments for release. The Council noted that factors in favour of release include (1) a person’s right to make an AIE Request and have access to information and (2) Promotion of openness, transparency and accountability. The Council noted that factors in favour of refusal include (1) the Council is obliged to ensure that the commercially sensitive information of others is protected and (2) it is considered that the release of this information would involve the release of commercially sensitive information of others.
62. The Council reiterated this position in its submissions to this Office, highlighting, in particular, that it considers the information to be commercial in nature relating to its solicitor. In considering the application of Section 36(1)(b) of the FOI Act, the Council commented that it undertook a procurement process for the appointment of solicitors for the provision of legal services in relation to property management. It stated that tenderers were requested to submit their pricing schedules for various aspects of conveyancing land purchase and disposal. It stated the rates were based on banded transaction values. It outlined that the solicitor concerned was successful and appointed by the Council.
63. The Council stated that one of the conditions of the land swap was that the purchaser would be responsible for the Council’s legal fees. The invoice was issued from the Council’s solicitor to the purchaser’s solicitor in respect of the Council’s legal fees for both pieces of land – that which was being transferred from the Council and that which was being transferred to the Council.
64. The Council stated that the invoice contains sufficient details to enable the rates charged by the solicitor to be identified by other firms of solicitors that submitted tenders and other competitors will also be able to work out what rates are being charged. It stated, therefore, the information is considered to be its solicitor’s commercially sensitive information.
65. The Council stated the harm that will arise from the release of Record 8 is that it will convey to the market and competitors of the Council’s solicitor key commercial information which would benefit competing firms in any future procurement process and thereby undermine the solicitor’s competitive position. It stated that the making available of the information will result in a disbenefit to the solicitor. The Council submitted that its solicitor could reasonably be expected to suffer a loss in relation to its commercial activity and its competitive position would be prejudiced in relation to ongoing or future procurement processes.
66. The Council stated that it is satisfied that section 36(2) does not apply. Regarding the public interest test at section 36(3), the Council stated that its solicitor engaged in a public procurement process for the provision of legal services. It stated that the rates quoted on the invoice are based on the rates that were tendered by the solicitor as part of its tender. It stated that a good tender application is a skill that is acquired and refined through experience and represents the tenderers unique position and is particular to that tenderer. It stated that releasing the invoice will give other tenderers an insight into such matters and thereby result in a loss to the solicitor and undermine its competitive position. The Council stated that it would also not benefit from disclosure as the release would undermine its position in relation to conducting any future procurement processes.
67. In respect of the public interest test under article 10 of the AIE Regulations, in addition to repeating the public interest factors in favour of disclosure set out in its internal review decision. The Council noted the following factors in favour of refusal (1) the competitive position of its solicitor (2) the loss that its solicitor could reasonably be expected to suffer in respect of any further procurement process (3) other tenderers unwillingness to participate in future procurement processes thereby resulting in less competitive tender processes (4) the information is exempt under the FOI Act 2014.
68. In its submissions to this Office the Council’s solicitor, who was consulted as a third party, stated that notwithstanding its view that Record 8 is not environmental information, Record 8 is to be refused under article 9(1)(c) of the AIE Regulations on the basis that it is of a commercially sensitive and/or confidential nature. It stated that in this regard Record 8 includes an invoice and accordingly it contains commercial and price sensitive information which if released would reveal commercially sensitive information relating to its fee structure. It explained that information relating its billing and fee structure is information that is generally not made available to the public and its release would be highly prejudicial to its competitiveness in the market and would provide an unfair commercial and financial advantage to its competitors. It stated that if this information was released it would give competitive information on its fee structure to competitors and would have a detrimental impact on how it conducts its business. It stated in circumstances where it operates within a relatively small market the release of the documentation would provide confidential and commercially sensitive information to competitors giving them an unfair competitive advantage in the tendering process for works in circumstances where its competitors would know its pricing structure.
69. The Council’s solicitor further stated that it would not be in the public interest for such information relating to its fee structure and billing process to be released to the general public as in doing so it and other firms like it, when competing for contracts within the public sector would be less willing to provide such financial and commercial information in circumstances where it may be divulged to competitors which would be to the detriment of the public insofar as firms such as itself may on that basis decide not to tender or price for works within the public sector which would have the result of increasing legal services costs for the public sector.
70. In her submissions to this Office the appellant argued that the Council cannot rely on section 36 of the FOI Act for the purposes of applying article 9(1)(c) of the AIE Regulations. I recall that this case was placed on hold in light of the reference by the then Commissioner under article 12(9)(a) of the AIE Regulations in another appeal (Coillte Teoranta and People Over Wind) seeking guidance from the High Court on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent that they involve an interplay with the FOI Act. The relevant judgment of the High Court is available at 2023 IEHC 227 . While the High Court did not specifically deal with the interaction between the FOI Act and 9(1)(c), I consider that judgment can be interpreted to mean that only those exemptions provided for within the FOI Act the purpose of which is to protect commercial or industrial confidentiality can be relied upon by public bodies under that Act when endeavouring to apply article 9(1)(c) of the AIE Regulations. Accordingly, as the Council is a public body under the FOI Act and given the interest designed to be protected by section 36 of the FOI Act (commercially sensitive information), I am satisfied that section 36 of the FOI Act can be relied upon by the Council when seeking to apply article 9(1)(c) of the AIE Regulations.
Is the information at issue commercial or industrial in nature?
71. Record 8 contains an email from the purchaser to the Senior Executive Engineer (no text) forwarding an email (brief cover email) from the purchaser’s solicitor to the purchaser attaching an invoice which was sent from the Council’s solicitor to the purchaser’s solicitor in relation to the land swap. Having examined Record 8, I am satisfied that that the information at issue is commercial/industrial in nature.
Does that commercial / industrial information have an element of confidentiality? Is that confidentiality provided for in law to protect a legitimate economic interest(s)? Would that economic interest, and thereby its confidentiality, be adversely affected by disclosure of the information at issue?
72. As noted above article 9(1)(c) of the AIE Regulations is based on Article 4(2)(d) of the AIE Directive which states: “Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect: the confidentiality of commercial or industrial information where such confidentiality is provided for by national or Community law to protect a legitimate economic interest, including the public interest in maintaining statistical confidentiality and tax secrecy.”
73. While Article 4(2)(d) has been referenced by the Court of Justice of the European Union (“CJEU”) in a number of cases, the CJEU has not provided detailed guidance on this exemption. The CJEU has, however, provided useful guidance on the interpretation and application of Article 4(2) more generally: see in particular the judgment of the Grand Chamber of 14 February 2012 in C-204/09 Flachglas. As appears from that judgment (paragraphs 61-63):
1. By specifying in Article 4(2) of Directive 2003/4 that the protection of the confidentiality must be ‘provided for by law’, the European Union legislature clearly wanted “an express provision to exist in national law with a precisely defined scope, and not merely a general legal context”.
2. However, this specification “cannot be interpreted as requiring all the conditions for application of that ground for refusing access to environmental information to be determined in detail since, by their very nature, decisions taken in that domain are heavily dependent on the actual context in which they are adopted and necessitate an assessment of the nature of the documents in question and the stage of the administrative procedure at which the request for information is made”.
3. Public authorities should not be able “to determine unilaterally the circumstances in which the confidentiality referred to in Article 4(2) of Directive 2003/4 can be invoked”.
74. In addition to the findings in Flachglas, the CJEU also considered the obligations on public authorities relying on exemptions in C-619-19 Land Baden-Württemberg v D.R. In that case the Court relied on Article 4(5) of the Directive, the last sentence of which puts an obligation on a public authority to state reasons for refusal of access to environmental information in writing to the requestor. At paragraph 69 of Land Baden-Württemberg v D.R the Court stated: “On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
75. Taking the above into account, I consider that article 9(1)(c) requires me to address the following questions:
1. Is the confidentiality of the information protected by a national or EU law?
2. Is that law in place to protect commercial or industrial confidentiality?
3. Does that law have a precisely defined scope?
4. Is that law objective, such that it does not permit public authorities to determine unilaterally the circumstances in which confidentiality can be invoked?
5. Would disclosure of the information will have an adverse effect on a legitimate economic interest?
76. In order to show that the confidentiality is protecting a legitimate economic interest as required by article 9(1)(c), there must be some adverse effect on the legitimate economic interest that the confidentiality is designed to protect. Accordingly, when relying on article 9(1)(c) the appellant must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the economic interest identified. The risk of the economic interest being undermined must be reasonably foreseeable and not purely hypothetical (see by analogy, C-57/16 P ClientEarth v Commission, paragraph 51).
77. The Council and the third party consider that article 9(1)(c) applies by reference to section 36(1)(b) of the FOI Act. Section 36(1)(b) of the FOI Act provides that an FOI body shall refuse to grant access if the record concerned contains financial, commercial, scientific, technical or other information whose disclosure could reasonably be expected to result in material financial loss or gain to the person to whom the information relates, or could prejudice the competitive position of the person in the conduct of his or her profession or business or otherwise in his or her occupation.
78. The essence of the test in section 36(1)(b) is not the nature of the information but the nature of the harm which might be occasioned by its release. The harm test in the first part of section 36(1)(b) is that disclosure “could reasonably be expected to result in material loss or gain”. This Office takes the view that the test to be applied is not concerned with the question of probabilities or possibilities but with whether the decision maker’s expectation is reasonable.
79. The harm test in the second part of section 36(1)(b) is that disclosure of the information "could prejudice the competitive position" of the person in the conduct of their business or profession. The standard of proof to be met here is lower than the "could reasonably be expected" test in the first part of this exemption. However, this Office takes the view that, in invoking "prejudice", the damage that could occur must be specified with a reasonable degree of clarity.
80. In order for the information to be exempt under article 9(1)(c), release of the information must adversely affect the legitimate economic interest of the party seeking to rely on it. This is broadly the same analysis as the approach taken by this Office to the harm tests in section 36(1)(b) of the FOI Act. It seems to me that the correct approach is to consider the adverse effect on the legitimate economic interest at the same time as the harm tests in section 36(1)(b) of the FOI Act. In other words, the final step in article 9(1)(c) of release adversely affecting the legitimate economic interest is built into section 36(1)(b) of the FOI Act and does not need to be considered separately.
81. 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 I can give about the information at issue and the extent to which I can describe certain matters in my analysis is limited. I can confirm I have considered the information at issue in Record 8.
82. I have set out both the Council’s and the third party’s submissions above. The general thrust of both submissions is that disclosure of Record 8, in particular the invoice contained therein, which contains details of the Council’s solicitor’s fee structure, could prejudice the competitive position of the Council’s solicitor. Having examined the Record 8, I am satisfied that there is a reasonably foreseeable risk that such a harm would arise. I am satisfied that section 36(1)(b) of the FOI Act applies to Record 8.
83. Having found section 36(1)(b) of the FOI Act to apply, I must proceed to consider whether section 36(2) or 36(3) serve to disapply section 36(1).
84. Section 36(2) provides for the release of information to which section 36(1) is found to apply in certain circumstances. I am satisfied that none of the circumstances identified at section 36(2) arise in this case. Section 36(3) provides that section 36(1) does not apply to a case in which the FOI body considers that the public interest would, on balance, be better served by granting than refusing to grant the request.
85. In considering where the balance of the public interest lies in respect of the FOI Act in this case, I have had regard to section 11(3) of the Act which provides that in performing any functions under the Act, an FOI body must have regard to, among other things, the need to achieve greater openness in the activities of FOI bodies and to promote adherence by them to the principles of transparency in government and public affairs and the need to strengthen the accountability and improve the quality of decision making of FOI bodies. In doing so, I have also had regard to the judgment of the Supreme Court inThe Minister for Communications, Energy and Natural Resources and the Information Commissioner & Ors 2020 IESC 57 ("the eNet case"). In that case, the Supreme Court found that a general principle of openness does not suffice to direct release of records in the public interest and "there must be a sufficiently specific, cogent and fact-based reason to tip the balance in favour of disclosure".
86. The appellant made no submissions to this Office regarding the public interest in release of Record 8. I have set out both the Council’s and the third party’s submissions above. I have also examined Record 8. I am satisfied that release of Record 8 would give an insight into legal costs involved where the Council engages in a land swap. However, release would also disclose commercially sensitive information relating to the Council’s solicitor and prejudice its competitive position. I do not consider such outcomes to be in the public interest. Section 36(1) of the FOI Act is an express recognition of the fact that there is a public interest in the protection of commercially sensitive information.
87. Having considered the matter and the content of Record 8 it seems to me that the public interest in favour of disclosing Record 8 does not, on balance, outweigh the public interest in favour of withholding Record 8. I find, therefore, that section 36(3) does not apply in this case.
88. In all the circumstances, I am satisfied that Record 8 has an element of confidentiality provided for in law (section 36(1)(b) of the FOI Act) to protect a legitimate economic interest. Accordingly, it is appropriate to also consider the adverse effect of disclosure in accordance with article 9(1)(c). As noted, this is broadly the same analysis as the approach taken by this Office to the harm tests in section 36(1)(b) of the FOI Act and the correct approach is to consider the adverse effect on the legitimate economic interest at the same time as the harm tests in section 36(1)(b) of the FOI Act. In circumstances where I have considered the submissions of the parties and the content of Record 8, and reached a conclusion that disclosure could prejudice the competitive position of the Council’s solicitor and I am satisfied that there is a reasonably foreseeable risk that such a harm would arise, I also accept that disclosure would adversely affect the legitimate economic interest of the Council’s solicitor.
89. Accordingly, I am satisfied that article 9(1)(c) applies in respect of Record 8. However, that is not the end of the matter, I must proceed the public interest test under the AIE Regulations in respect of Record 8.
Public Interest Test
90. I have found that article 9(1)(c) of the AIE Regulations applies to the information in Record 8.
91. However, that is not the end of the matter. Article 10 must also be considered. Article 10(1) of the AIE Regulations provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. As noted above, I am satisfied that article 10(1) of the AIE Regulations does not apply in this case. 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.
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 commercial or industrial confidentiality, where such confidentiality is provided for in national or Community law to protect a legitimate economic interest.
94. As previously stated, Record 8 contains an email from the purchaser to the Senior Executive Engineer (no text) forwarding an email (brief cover email) from the purchaser’s solicitor to the purchaser attaching an invoice which was sent from the Council’s solicitor to the purchaser’s solicitor in relation to the land swap.
95. I have set out both the Council’s and the third party’s submissions above. I have also examined Record 8. As previously stated, I am satisfied that release of Record 8 would give an insight into legal costs involved where the Council engages in a land swap. I consider there to be a public interest in such insight.
96. However, the exception provided for in article 9(1)(c) of the AIE Regulations is designed to protect commercial confidentiality where such confidentiality is provided for in national or Community law to protect a legitimate economic interest. In the circumstances of this case, I am conscious that the disclosure of Record 8, which comprises emails and the invoice related to conveyancing work carried out by the Council’s solicitor that was required to undertake the land swap / disposal, would prejudice the Council’s solicitor’s competitive position.
97. I have weighed the factors for and against disclosure. In light of the above and having examined Record 8, I am of the view that the interest in refusal outweighs the public interest in disclosure. Accordingly, I find that the Council was justified under article 9(1)(c) in refusing access to Record 8.
98. In accordance with article 10(5), I have considered whether the Council could have separated out information held with information to which article 9(1)(c) applies. Again, as noted, Record 8 contains an email from the purchaser to the Senior Executive Engineer (no text) forwarding an email (brief cover email) from the purchaser’s solicitor to the purchaser attaching an invoice which was sent from the Council’s solicitor to the purchaser’s solicitor in relation to the land swap. The emails are brief and having examined the specific content of Record 8, I am satisfied that it is appropriate to state that article 9(1)(c) applies to the entirety of the record and that the Council was unable to consider article 10(5) in this case. I consider that to do so would render the information misleading and/or meaningless.
99. Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary the Council’s decision. I affirm its decision to refuse access to further relevant information relating to Parts 1, 2, 4, 5, 7, 9, and 10 of the appellant’s request under article 7(5) on the AIE Regulations. I annul its decision to refuse access to Record 8 on the basis that it is not environmental information, however, affirm it its refusal under article 9(1)(c) of the AIE Regulations.
100. 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