Decision
Mr Shane Foran and Galway City Council
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-148418-H9S5F9
Published on
From Office of the Commissioner for Environmental Information (OCEI)
Case number: OCE-148418-H9S5F9
Published on
23 Jan 2025
1. On 29 January 2024, the appellant made a request for environmental information to the Council. This request was made in reply to an email from the Council, where it had attached a redacted copy of the Road Safety Audit Report titled – “Galway City Council Pedestrian Crossings Tuam Road, Salthill & Bearna Road Stage 1/2 Road Safety Audit”. The appellant wrote in his request for information:
“With regards to the attached and partially redacted Road Safety Audit report furnished to me under FOI 143-22. Under the "Access to Information on the Environment Regulations 2007-2011" I request an unredacted copy of this Road Safety Audit report covering any other crossing sites and designs and including the names or initials of the Road Safety Audit team and the design team. I would prefer the document electronically and in the original format please.”
2. By way of background, on 16 December 2022, the applicant sought from the Council a copy of a Road Safety Audit report showing the names of the designers and of the road safety audit team which had been redacted in those records that were provided to him by the Council in response to a previous Freedom of Information request he had made. In a decision dated 10 January, 2023, the Council refused his request under section 37(1) of the FOI Act, 2014. On 30 January 2023, the applicant applied for an internal review of the Council’s decision. On 20 February 2023, the Council affirmed its original decision. The appellant appealed the decision of the Council to the Office of the Information Commissioner and, an investigator acting on my behalf in my role as Information Commissioner, issued a decision finding that the Council was justified in refusing access to the withheld information under section 37(1) of the FOI Act. (see OIC decision – 141601-T2Z0C3)
3. The appellant disagreed with the aforementioned OIC decision to affirm the decision of the Council to refuse access to the names of the designers and audit team in the Road Safety Audit report under section 37(1) of the FOI Act, and appealed to the High Court for a judicial review of the OIC decision. The appellant asked the Court to amend the proceedings for him from a judicial review, to a statutory appeal, at a hearing on 29 January 2024. At this hearing Judge Hyland struck out the matter, on the basis that it is not possible to convert a judicial review into a statutory appeal. This is the backdrop to which the appellant then brought his request for environmental information under the AIE regime to the Council on that same day.
4. On 28 February 2024, the Council issued its original decision, part-granting the appellant’s AIE request.
“…my decision is to part grant you access to the information sought. Please see attached schedule which outlines all the documents which come within the scope of your request. Please find attached redacted copy of Road Safety Audit as requested. Access to some information sought is refused in accordance with Article 8(a)(i), which provides as follows:
8. A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information— (a) would adversely affect (i) the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law
It is my decision that the confidentiality of the records in question is otherwise protected by law under Section 37(1) of the Freedom of Information Act 2014 to which OIC Decision refers: https://www.oic.ie/decisions/mr-y-and-galway-city-coun-2/index.xml
FOI Section 37(1) provides that: 37. (1) Subject to this section, a head shall refuse to grant an FOI request if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).
In arriving at a decision on your request, I confirm that I have had regard to the provisions of Article 10 of the Regulations, as a decision to refuse to disclose information under Articles 8 and/or 9 must not be taken in isolation from the relevant provisions in Article 10. In line with Article 10(3), my deliberations have included weighing the public interest served by disclosure against the interest served by refusal.
5. The decision went on to consider the public interest balancing test. It stated:
“In accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of your request.
I have determined that the public interest would not be served by disclosing the personal information in these records, due to the public interest in protecting personal information, while being conscious of the public interest in openness and transparency in dealing with public authorities. This information is personal data, and information relating to an actual person, therefore it has not been provided.”
6. The Council attached a Schedule of Records to its original decision. The schedule listed one record dated 22 February 2024, described as “Road Safety Audit”. It also stated that the record was being part granted and that the information was being withheld under article 8(a)(i) of the AIE Regulations and section 37(5) of the FOI Act.
7. On 4 March 2024, the appellant requested an internal review of the decision. He said:
“Specifically I appeal the decision to withhold the names of the authors of the road safety audit report that was the subject of that AIE request. In my view, the content of the road safety audit report provides grounds for a formal complaint to Engineers Ireland regarding the apparent manner in which the authors conducted their report. In addition, the design approved by them is objectively in conflict with the safety recommendations of various road design guidance going back over 25 years.
8. The appellant set out what he perceives to be the public interest in the requested information:
The AIE regulations provide that the public authority shall “weigh the public interest served by disclosure against the interest served by refusal”. In my view there is a strong public interest in having the names of the authors of this report released. There is a common law right to use public highways to pass and repass. With the exception of the very young or very old, the infirm or those in prison the majority of the public must make independent use of public roads on a daily basis. The provision of public highways is possibly the most basic common good provided by the state to its citizens and residents. All roads users have a legitimate interest that the design and management of public roads should be correct and use treatments supported by research. It would appear there were certain consultant roads engineers employed to conduct a road safety audit on a public road scheme but who have apparently failed to carry out that audit in the correct manner. The same authors have approved a design in apparent conflict with long understood safety principles. It seems to me there is an indisputable public interest in having this matter investigated by an appropriate authority.
9. The appellant also considered whether the information at issue was “confidential information”:
“In her decision (the AIE Officer) makes reference to the Freedom of Information Act. In Section 2 (Interpretation) the Act states:
Interpretation “personal information” means information about an identifiable individual that, either— [...] but does not include— […] (II) in a case where the individual is or was a service provider, the name of the individual or information relating to the service or the terms of the contract or anything written or recorded in any form by the individual in the course of and for the purposes of the provision of the service, or In my reading of that section, the name of a service provider, such as a consultant engineer working on a road safety audit report, is not considered personal information.
Grounds of Personal Information and Consent To Be Identified In her decision letter (the AIE officer) refers to Article 8 of the AIE regulations which state
A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information— (a) would adversely affect— (i) the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information,
This reason for refusal relies on the assumption that the persons involved have not consented to being identified. If they have consented to being identified then the public authority may release that information. In this case the only information being sought is their full names - no other details are sought. It seems to me that a reasonable person looking at the typical contracts and practice around the provision of engineering consultancy to local authorities would conclude that consent to being identified is assumed in the contractual agreements. The same applies to road safety audits. It is also routine for roads authorities including Galway City Council to publish unredacted road safety audits – examples provided at the end. Department Circular 3 of 2022 (June 7th) specifies that road safety audits are to be carried out for proposed works on all public roads (attached). The circular specifies that road safety audit teams must have members with specific characteristics and qualifications
10. The appellant’s submission continued:
“All Audits or assessments included as part of the Quality Audit shall be signed by Competent/Approved Audit Team Members and Leaders for relevant multidisciplinary areas. For Road Safety Audits specific requirements for team member(s) and team leaders are set out in TII Standards. Audit Teams that carry out Road Safety Audits on National Roads shall be approved by TII in accordance with TII Standards. All audit or assessment reports shall be retained on file for inspection and/or submission to the TII, NTA or DoT as required. Road safety audit team members are specifically required to sign the reports they produce. That is to say they are required to associate themselves directly and clearly with those reports. Please find also attached TII guidance (Road Safety Audit Guidelines GE-STY-01027) which states that road safety audits must include a signed statement by the report authors. Also copies of all road safety audits conducted under that process must be submitted to a central repository. The TII Guidance also notes “[…] it should be noted that both the Road Safety Audit Report and Exception Report could be used in future litigation.” So the authors of a road safety audit report participate on the specific basis that they may be required to explain their reports before the courts. I think most reasonable people would conclude that a qualified person, accepting an appointment to conduct such a report, would have consented to being identified with that report. Prior to Circular 3 of 2022 road safety audits were already required for all works involving national roads and copies were to be held centrally. I note that, in my reading, there is nothing in Department Circular 2 of 2022 to indicate that the identities of road safety audit team members are confidential. They are supposed to be independent analyses of road designs proposed for public roads. They should not contain anything that might be deemed confidential or commercially sensitive. In my view, a reasonable person would question how the identities of road safety audit team members seem generally publishable but then appear to become confidential personal information when questions are being asked about the suitability of one particular design.
11. The appellant’s submission continued:
“Where the confidentiality of personal information is protected by law, such personal information must not be made available without the consent of the person to whom the information relates. In applying this exception, public authorities should have regard to the FoI and Data Protection Acts, as well as to any other statutory provisions that may be relevant in the particular case. Where information is protected under these legislative codes, it must also be protected for the purpose of the provisions of the AIE code unless the person concerned consents to its release. In general, unless obvious sensitivities are involved (or where it would impose an undue burden on the public authority to contact the person concerned), an opportunity should be given to an individual to give consent to the release of personal information before a request for such information is refused. In the event that my request for this information fails on the other points above, then I formally request that the authors of this road safety audit report be approached for their consent to the release of their names. This scheme is already the subject of formal complaints to Engineers Ireland which is the statutory regulatory body for engineers in Ireland. If this road safety audit team are refusing to be associated with their own report then I think this will be of interest.”
12. On 28 March 2024, the Council issued its internal review, affirming the original decision.
“I have examined the records relevant to this request. I have decided to affirm the decision made by the initial decision-maker and provide the following regarding my decision: In considering your appeal to this office and the arguments you have raised; I must point out that I fundamentally disagree with your interpretation of certain elements of the AIE Regulations and the Freedom of Information Act 2014. In circumstances where a service is provided to a Public Authority, it is the ‘Service Provider’ contracted to carry out the task that is responsible for the provision of the service and not the individual employees of that service provider. This interpretation is affirmed by the decision of the OIC in relation to Case Number: OIC-141229-B4C4Q7, OIC-141602-B9H4B5 and OIC-141601-T2Z0C3.
AIE Article 8 makes the following provision to consider
“…the disclosure of the information, and where that confidentiality is otherwise protected by law” 8. A public authority shall not make available environmental information in accordance with article 7 where disclosure of the information— (a) would adversely affect (i) the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law
It is my decision that the confidentiality of the records in question is otherwise protected by law under Section 37(1) of the Freedom of Information Act 2014 to which OIC Decision refers: https://www.oic.ie/decisions/mr-y-and-galway-city-coun-2/index.xml
I would therefore like to draw your attention to the Commissioner’s ruling in Case Number OIC-141229-B4C4Q7, OIC-141602-B9H4B5 and OIC-141601-T2Z0C3 as follows:
“Having consider the matter, I am satisfied that the names of the individuals at issue who work for the company providing the service to the Council are personal information within the meaning of the FOI Act. Accordingly, I find that section 37(1) of the Act applies to those names. … Notwithstanding the applicant’s views that consent should be sought, I do not consider this is necessary or warranted in this case. As mentioned above, I am cognisant of the fact that the release of records under FOI is, in effect, regarded as release to the world at large, given that the FOI Act places no constraints on the uses to which the information contained in those records may be put. Having carefully considered the matter and given the strong public interest in protecting the right to privacy, I do not consider the public interest in releasing the names of the relevant individuals outweighs the right to privacy of those individuals. I find therefore, that section 37(5)(a) does not apply. Consequently, I find that the Council was justified in refusing access to the withheld information under section 37(1) of the FOI Act.
Furthermore, I would like to draw your attention to the AIE Regulations with regard to the Definition of “Environmental Information”, as set out in Article 3(1). This is fundamental in that it determines what environmental information comes within the remit of the AIE Regulations. I do not believe that the individual employee names, employed by this service provider, contracted to carry out an Audit Report could possibly be considered as “environmental information”. I affirm the original decision and draw your attention to the following right of appeal.”
13. The appellant appealed to this Office on 22 April 2024.
14. I have now carried out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions and evidence of the appellant and the Council. I have also examined the contents 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’).
15. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Submissions
16. On 2 May 2024, the appellant made a detailed submission to this Office. He reiterated the background to this appeal. He also gave context as to what he believes is a strong public interest case in having the names of the engineers redacted in the Road Safety Audit Report released:
“Request AIE 04-24 concerns a request to know the names of registered professional civil engineers who did work for Galway City Council involving public roads. In this case the authors of a road safety audit report for a scheme at a pedestrian crossing on the Tuam road in Galway. The design used has had the objective effect of creating avoidable risks and distress for people who use bicycles. The manner of the conduct of the engineers involved has had results for bicycle users that in apparent opposition to state policy on environmental protection and climate change. The services of the registered engineers involved were obtained through an arrangement with Tobin Consulting Engineers who acted as their agents with Galway City Council. The scheme at issue is part of a wider pattern of state funds, including active travel funds, being used in Galway city in a manner that is objectively in opposition to state goals on environmental protection and climate change. In my view it is important to release this information in order to break this pattern and arrive at a situation where state funds are used to support state climate change policy rather than in a manner that objectively undermines it”
The environmental protection context for the AIE request whose refusal is the subject of this appeal
Current atmospheric models understand transport emissions to be a key contributor to global warming and climate change. Transport emissions are also a significant contributor to air pollution in terms of emissions directly harmful to human health such as particulate matter and nitrogen oxides. There are strong environmental and human health reasons for promoting alternative forms of transport such as walking and cycling. Successive government climate action plans refer to a need to reduce car dependency and promote the safety and accessibility of cycling and walking. Despite this, in Galway city there is an apparent pattern of professional civil engineers advising the Galway City Council executive to act in a manner that is objectively in opposition to state goals on promoting cycling access and safety.
17. The appellant in his submission gave a number of, what he says are, examples of consultant civil engineers providing Galway City Council advice in apparent opposition to state policy on climate change. He then sets out his grounds for appeal – some of which I have quoted below:
“Grounds for appeal: Environmental considerations
Based on the facts available to me, professional registered civil engineers working on state contracts are acting in a manner producing results that are objectively in opposition to state goals on environmental protection and climate change. In my view, there is a clear environmental protection justification for enquiries into the manner of the conduct of those professional registered civil engineers.
Grounds for appeal: Public interest
In my view Galway City Council have failed to have due regard for the public interest. In my view there is an overwhelming public interest that persons involved in designing roads should follow designs supported by research and avoid designs deprecated on safety grounds for decades. In my view, there is a clear public interest that engineers commissioned to conduct road safety audits should follow the processes defined for such audits and should be amenable to review when those processes were apparently not followed.
Grounds for appeal: Consent to release information
In my view Galway City Council has made an error in claiming that those involved have not consented to have their names released. Established guidelines require that engineers conducting road safety audit reports are clearly identified and attach a formal signed declaration to their reports. Road safety audit reports for public roads are routinely circulated and published as part of established consultation and planning processes. In my view consent can be assumed.
Grounds for appeal: Regulated profession
In Ireland, civil engineers are a regulated profession governed by standards and codes of conduct derived from primary legislation (The Institution of Civil Engineers of Ireland (Charter Amendment) Act, 1 of 1969). Public confidence in engineers in Ireland is founded on the knowledge that they are regulated and amenable to codes of ethics. Engineers Ireland publishes the names of all its members on its website - they do not treat such information as confidential. By choosing to interpret the names of registered professional engineers as private information, Galway City Council acted in a manner that evades a key mechanism for the regulation of engineers in Ireland”
18. On 10 June 2024, the Council made the following submission to this Office:
“In the decision-making, Galway City Council concluded that the information now sought (i.e., the Un-redacted Road Safety Audit Report including names and initials) is being refused as they relate to personal information of non-Council staff and does not affect the substance of the record.
Galway City Council are refusing to release the names/initials of the consultant engineers on the following grounds. The personnel who produced this report are not employees of Galway City Council and as such are entitled to right to privacy under Article 40.3 of the Constitution. As per the conclusions of Hamiliton P. in case of Kennedy and Arnold v The Attorney General there is unenumerated right to privacy set out in article 40.3 of the Constitution. A right to privacy is not an absolute right. A right to privacy must be balanced against the competing rights of another person but overriding a person’s right to privacy must be done for the common good or by the Oireachtas. The Council does not believe that the right to access to environmental information supersedes the engineers’ rights to privacy under the constitution. Employees are still entitled to retain their privacy rights and these rights can be enforceable against an employer. These engineers are not employees of the Council and as such, it is the view of the Council that the Constitutional right to privacy is not usurped by this information request. It is further submitted that the Access to Information on the Environment (AIE) Regulations do not override an individual’s right to privacy. Furthermore, Ireland has enacted the European Convention on Human Rights, and this incorporated the Convention into Irish law in 2003. At schedule 1 of the 2003 Act, the right to privacy states that “There shall be no interference by a public authority of the exercise of this right……” but there is an exception, and this states that it must be necessary in a democratic society. There are other exceptions which are not listed here.
Arising from the appeal to OCEI, the names of the engineers who completed the report are being sought. It is the contention of the Council that releasing the names of the individual external consultant engineers, working for Tobin Consulting Engineers, will impact on the employees’ rights to privacy under article 40.3 of the Constitution and breach their right to privacy under the European Convention of Human Rights on the basis that release of their names will cause a public authority to interfere with the engineers right to privacy under the Constitution and the Convention. It is further submitted that there is no exception that can be applied as the release of the names of the engineers is not necessary under the AIE Regulations or under the exception of it being necessary in a democratic society. If the Commissioner shall not allow the Council to invoke the rights under the Constitution and the Convention, it is further submitted that the Access to Environmental (AIE) regulations have exemptions to the provision of the personal information of third parties.
In the 2007 Regulations, regulation 8(1) states that personal information of a natural person who has not consented to disclosure, an authority shall not disclose the information. The Council have contacted Tobin Consulting Engineers and they have not consented to the release of the personal information of their employees. As such, the Council are applying regulation 8(1) of the 2007 AIE Regulations and are refusing to release the names of the engineers/personal information. It is submitted that the names of the engineers are not required as the entire report has been provided and the environmental information already released in the report meets the requirement of the access request. What is now being sought is personal information and not environmental information. It is evident, from definition of environmental information set out in regulation, that what is now being sought does not meet the requirements of the 2007 definition of what constitutes environmental information. Considering all the above, the Council will not release the names of the engineers.
Tobin Consulting Engineers were engaged by Galway City Council to carry out this work. In the main, the information being refused relates to personal information of non-Galway City Council staff and does not affect the environmental substance of the record. Galway City Council have engaged with Tobin Consulting Engineers to undertake this work. The financial reward will issue to Tobin Consulting Engineers as the engaged service providers. This information would not be freely available in the public realm from any other source. At this point, we are not aware of any benefit to the individuals to whom the record relates. It is the absolute opinion of this local authority that the confidentiality of the records in question is otherwise protected by law under Section 37(1) of the Freedom of Information Act 2014 to which OIC Decision refers: https://oic.ie/en/ombudsman-decision/a4909-mr-y-and-galway-city-council/ FOI Section 37(1) provides that: 37. (1) Subject to this section, a head shall refuse to grant an FOI request if, in the opinion of the head, access to the record concerned would involve the disclosure of personal information (including personal information relating to a deceased individual).
In arriving at the decision on this AIE request, regard was had to the provisions of Article 10 of the Regulations, as a decision to refuse to disclose information under Articles 8 and/or 9 must not be taken in isolation from the relevant provisions in Article 10.
In line with Article 10(3), deliberations have included weighing the public interest served by disclosure against the interest served by refusal. In considering the public interest factors which favour withholding elements/releasing of the records, accounts were taken of the following:
• The public interest in protecting the right to privacy of staff and non-staff members in relation to their personal circumstances.
Transparency and openness in respect of Local Authority spending
• That Galway City Council is not unduly impeded in the effective pursuit of its business.
• The harm to the individuals that may be caused by release of personal information.
• The benefit to the public by release of this information Having fully reviewed the records, there is no exceptional circumstance in this case that would warrant release of these records and therefore the decision found that the public interest was best served by refusal.
The records in question are concerned with pedestrian crossings at the Tuam Road, Salthill and Bearna Road, Galway City. The significant environmental information of these documents lies in the content and not the creator. We see no merit in the public knowing the identity of the individual persons that created such documents, by the service provider, and we cannot see that there is any merit in release.
Extracts from OIC-141229-B4C4Q7, OIC-141602-B9H4B5 and OIC-141601-T2Z0C3 “it is important to note that the release of records under the FOI Act must be regarded, in effect, as release to the world at large, given that the Act places no constraints on the uses to which a record released under the Act can be put. With certain limited exceptions provided for under the Act, which do not apply in this case, records are not released under FOI for any limited or restricted purpose. All of this means that in considering whether a right of access exists to records under section 37(5)(a) of the Act, any decision to grant access would be on the basis that there is an overriding public interest in the release of the records effectively to the world at large that outweighs the privacy rights of the third party individuals concerned.” “While I accept that the release of the identity of the individual engineers at issue may serve to somewhat enhance transparency around the particular project works, it seems to me that the degree of enhancement would be quite limited. In particular, I note the Council previously released a copy of the drawings and road safety audit report to the applicant. This, in my view, goes a long way towards serving the public interest in transparency and accountability in relation to the project works.” Having reviewed the records, I find there is no exceptional circumstance in this case that would warrant release of the requested information.
The public interest in the environmental information is served by the content of the documentation and knowing the author of same does not or should not affect the environmental substance of the documents. Galway City Council submits that the requested records should not be disclosed under the Access to Information on the Environment (AIE) Regulations as set out above. The main concerns are the risk of disclosing personal information of individuals working on behalf of the service provider and not directly for Galway City Council. The service provider has not given consent to the names of their staff being released. In carrying out its business, Galway City Council relies on open market bidding and procurement and the trust of individuals, companies, and organisations. We fear that release of this personal information would discourage these companies from tendering and trust in Galway City Council and other public bodies would be diminished as a result.”
19. In light of the issues raised in this case, I decided that it would be appropriate to issue a draft decision to the Council and to invite its submission on the draft. In the draft decision I outlined why I was minded to annul the decision of the Council and direct release of the information – this was sent to the Council in December 2024. The appellant was also sent a copy of the draft decision for reference.
20. The Council responded to the draft decision on 23 December 2024, disagreeing with the decision and making a number of points. I have considered all of these points in detail and have addressed them as appropriate in my decision below.
21. In accordance with article 12(5) of the AIE Regulations, the role of this Office 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 Council to make available environmental information to the appellant.
22. The Council has part-refused the appellant’s request on the basis of article 8(a)(i) of the AIE Regulations. The Council has withheld the names of the individuals on the audit team and design team within the Road Safety Audit report. It has also withheld the job titles and Transport Infrastructure Ireland (TII) Reference number (where applicable) of these individuals.
23. The appellant has requested an unredacted copy of the report – in particular to include the names of the audit team and designers. My review in this case is concerned with whether the Council is entitled to rely on article 8(a)(i) to withhold the names of these individuals, their job titles and their TII reference numbers (where applicable) in the Road Safety Audit report.
Environmental information
24. I note the Council in its internal review stated that it does not “believe that the individual employee names, employed by this service provider, contracted to carry out an Audit Report could possibly be considered as “environmental information”. In the Council’s first submission to this Office it said “that the names of the engineers are not required as the entire report has been provided and the environmental information already released in the report meets the requirement of the access request. What is now being sought is personal information and not environmental information. It is evident, from definition of environmental information set out in regulation, that what is now being sought does not meet the requirements of the 2007 definition of what constitutes environmental information.”
25. The Council in its response to my draft decision provided more detail on why it does not consider the information at issue to be environmental information. It stated: “The definition of environmental information does not refer to personal data and therefore, personal data should not be considered environmental information as it does not come within the definition set out in the regulations. Furthermore, at article 4(2)(f), it states that the Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the confidentiality of personal data. A similar provision is set out in article 8. In this author’s opinion, the two articles referred to above would indicate that there is exception or separate crave out regarding personal data and that personal data does not come within the definition of environmental information. When reviewing article 3, there is simply no reference to personal data and as such, personal data does not come within the definition of article 3.”
26. The Council’s view that the information sought is not environmental information under article 3(1) of the AIE Regulations, appears to be a secondary argument after its primary contention and assertion that the information sought is exempt under article 8(a)(i) of the AIE Regulations. Indeed, the vast majority of both the internal review and its earlier submission to this Office deals with the article 8(a)(i) exemption regarding personal information. But as the issue of whether this case concerns environmental information has belatedly been raised (and expanded on in the Council’s submission of 23 December 2024), it is necessary for me to address it in this decision.
27. The Council acknowledges that the record itself, the Road Safety Audit report, is environmental information as defined in the AIE Regulations – this appears to be common ground. The Council maintains that the information it is seeking to withhold – the names of the authors of the Road Safety Audit report – is not environmental information by virtue of the fact is it personal data. The Council maintains the release of the names of the authors of the Report as sought by the appellant would not enhance the “significant environmental information of these documents”. It said “The public interest in the environmental information is served by the content of the documentation and knowing the author of same does not or should not affect the environmental substance of the documents.”
28. I consider that the carrying out of the Road Safety Audit is an activity within the meaning of article 3(1)(C) of the AIE Regulations. Article 3(1)(C) refers to “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.” The “measure” in this appeal is the carrying out of the Road Safety Audit – and I consider the information sought in this appeal, including the names of the authors (and their job titles and TII reference number where applicable), to be information “on” the carrying out of the Road Safety Audit. The identity of the professionals who carried out the Road Safety Audit and who put together the requested report is on the Road Safety Audit within the meaning of Department for Business, Energy and Industrial Strategy v. Information Commissioner [2017] EWCA (Civ) 844) (Henney), and therefore to be environmental information within the definition of article 3(1) of the AIE Regulations.
29. To my mind, it would be artificial to separate out the names of the authors of the report as being not environmental information, yet accept that the remainder of the RSA report is environmental information under article 3(1)(C). I acknowledge that the Council feels strongly that personal data cannot be considered environmental information as per the definitions set out in the AIE Regulations. While I am not bound by precedent to follow my earlier decisions, and each appeal will be assessed on its own individual merits, I would add that this has been a long established approach I have taken on previous published decisions – and a number of recent ones including OCE-135716-R4G8T1 and OCE-137000-X7Y9N3.
30. In addition, it is clear from the scheme of the Directive that personal data can be environmental information. Article 4(2)(f) sets out an exemption from the obligation to release environmental information that is specifically targeted at protecting the confidentially of personal data. If all personal data was excluded from the scope of the Directive, there would be no need for this exemption.
31. The Council has sought to rely on article 8(a)(i) to withhold the names of the audit team and designers (as well as their job titles and TII reference numbers where applicable) in the Road Safety Audit Report– this information is being sought by the appellant.
32. In order to rely on article 8(a)(i) the information must show disclosure of the information— “(a) would adversely affect— (i) the confidentiality of personal information relating to a natural person who has not consented to the disclosure of the information, and where that confidentiality is otherwise protected by law.”
GDPR
33. I consider it appropriate to briefly set out the approach to personal data under the AIE Regime with reference to the GDPR.
34. Article 8(a)(i) seeks to transpose Article 4(2)(f) of the AIE Directive, which enables Member States to provide for refusal of a request where disclosure would “adversely affect … the confidentiality of personal data and/or files relating to a natural person where that person has not consented to the disclosure of the information to the public, where such confidentiality is provided for by national or Community law” (my emphasis).
35. The final paragraph of Article 4(2) states, referring to the predecessor to the GDPR: “Within this framework, and for the purposes of the application of subparagraph (f), Member States shall ensure that the requirements of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are complied with.”
36. In light of this, I consider that the reference to “personal information” in article 8(a)(i) of the AIE Regulations to be consistent with the meaning of “personal data” under the GDPR, a concept with which every public authority is now very familiar. It is clear from this final paragraph of Article 4(2) of the AIE Directive that the AIE regime is intended to interact harmoniously with the European data protection regime. In the same vein, Article 86 of the GDPR (read with recital 154) permits the disclosure of personal data in accordance with information access regimes under EU or national law, where those regimes reconcile the right of access to information with the right to protection of personal data. This again indicates that the GDPR is intended to interact harmoniously with national and European regimes offering public access to information.
37. In Ireland, Article 86 of the GDPR is implemented by section 44(2) of the Data Protection Act 2018, which provides: “For the purposes of Article 86, personal data contained in environmental information may be disclosed where the information is made available under and in accordance with the [AIE] Regulations pursuant to a request within the meaning of those Regulations.” On one view, this could be considered to be a standalone ‘gateway’ for the disclosure of personal data under the GDPR, permitting disclosure of all personal data contained in environmental information pursuant to an AIE request. However, the CJEU has repeatedly confirmed that the legal bases for processing in Article 6 of the GDPR are exhaustive list of the cases in which processing of personal data can be regarded as lawful ( Case C-252/21 Meta Platforms at paragraph 90; Case C-26/22 Case C-26/22 SHUFA Holding at paragraph 73).
38. Since its enactment, the principal law relied on to protect the confidentiality of personal data is the GDPR. The GDPR is underpinned by the fundamental rights to privacy and the protection of personal data in the Charter. One of the stated objectives of the GDPR is to secure the “protection of natural persons with regard to the processing of personal data” (Article 1(1)), with one of the principles of processing being integrity and confidentiality (article 5(1)(f). As noted above, the CJEU has repeatedly confirmed that the legal bases of processing in Article 6 of the GDPR are an exhaustive list of the cases in which processing of personal data can be regarded as lawful ( Case C-252/21 Meta Platforms at paragraph 90; Case C-26/22 SHUFA Holding at paragraph 73). Disclosure of personal data in a manner which is not lawful, within the meaning of Article 6, is subject to sanction, including through the corrective powers of the supervisory authorities, in Ireland the Data Protection Commission. It is difficult to see how such provisions can be described as merely permissive and not protective. The protection of confidentiality under the GDPR is not absolute, but absolute protection is not required for the purpose of article 8(a)(i) of the AIE Regulations. I note the analysis of Hyland J in this regard (albeit relating to a different exception) in Commissioner for Environmental Information v Coillte Teoranta and others [2023] IEHC 227 at paragraphs 78-84.
39. It follows that, in order to determine whether the confidentiality of personal data is protected by the GDPR, one must consider whether there is a lawful basis under Article 6(1) of the GDPR for disclosure. If there is a lawful basis for disclosure, the personal data may lawfully be disclosed and the confidentiality of the personal data is not protected by the GDPR. Conversely, if there is no lawful basis for disclosure, the personal data may not be disclosed and the confidentiality of the personal data is protected by the GDPR.
40. There are six lawful bases for processing personal data set out in Article 6 of the GDPR. It appears that the most relevant basis to consider is Article 6(1)(f), ‘necessary for the purposes of the legitimate interests pursued by the controller or by a third party.”
41. The Council rejects this and states Article 6(1)(f) cannot be relied upon by public authorities. In its submission to this Office on 23 December 2024 it said: “Local authorities are not entitled to use article 6(1)(f) as the paragraph after article 6(1)(f) states “Point (f) of the first subparagraph shall not apply to processing carried out by public authorities in the performance of their tasks.” Processing of the personal data includes any further processing by a local authority. Releasing the names of the names under an AIE request would be considered the processing of the engineers’ personal data under the GDPR regulations. It is evident that reliance on article 6(1)(f) cannot be used for the release of the personal data in the report.”
42. The Council is correct in its assertion that Article 6(1)(F) provides that this ground for processing shall not apply to processing carried out by public authorities in the performance of their tasks. But I believe the Council has erred in its interpretation of this provision. I consider it appropriate for me at this juncture to provide some clarification in this regard. In Case C180/21 Inspektor v Inspektorata kam Visshia sadeben savet, the CJEU found that processing by public authorities which is necessary for the performance of a task in the public interest comes within the scope of Article 6(1)(e) and cannot come within the scope of Article 6(1)(f), as those bases are mutually exclusive (paragraph 85). The Court found that the functions of bringing prosecutions and representing the State in an action for damages were public in nature and were ‘tasks’ of the Public Prosecutor’s Office. Accordingly, the application of Article 6(1)(f) was excluded in respect of processing for that purpose (paragraphs 91-93). This case indicates that one must consider whether the purpose of the processing is the performance of a task in the public interest or whether the purpose is a different interest of a private nature (see paragraph 86). I note the Opinion of Advocate General Campos Sánches-Bordona, where he states that Article 6(1)(f) only applies “to conflicts between (private) parties whose interests are not public in nature” (paragraph 96 of the Opinion). This passage would suggest that a public authority can never rely on Article 6(1)(f). However, this aspect of the Opinion does not appear to have been adopted by the Court, with the Court instead making a distinction between the interests of State authorities that are public in nature and those that are private in nature. For example, the Court made a contrast between the case at issue and a case in which the State is acting in defence of private interests (paragraph 92 of the Judgment).
43. In light of this case, I consider that the question for me is whether a public authority releasing information pursuant to an AIE request is doing so for the purposes of the performance of its tasks or for some other purpose. The term ‘task’ is not defined in the GDPR, but the use of that term in the CJEU’s recent case law gives some illustration as to its meaning. For example, the ‘task’ in Case C-180/21 involved bringing prosecutions and representing the State in an action against it for damages. In Case C-667/21 Krankenversicherung Nordrhein, the Court referred to the ‘statutory task’ of the medical service for health insurance funds. In Case C-439/19, the Court referred to the ‘task’ of the Latvian Road Safety Directorate of improving road safety. In each of these examples, the ‘task’ of the body appears to refer to the functions that the particular body carries out, as opposed to the more general functions and duties applicable to all public bodies. When acting on AIE requests, public authorities are, of course, acting in accordance with their statutory duties under the AIE regime. Such duties apply generally to all public authorities. However, with the possible exception of my Office, I cannot identify any public authority whose ‘task’ involves the release of information pursuant to AIE requests. Indeed, the release of information pursuant to an AIE request may conflict with the performance of the ‘tasks’ of the public authority. For example, in a case where the effective performance of a public authority’s tasks requires that its proceedings remain confidential, a public authority may consider that release of information pursuant to an AIE request is positively inconsistent with the performance of its ‘tasks’. By contrast, the release of environmental information pursuant to an AIE request is very much in the interest of the person requesting the information. The duty of public authorities to release information facilitates the right of access of such a requester, which is conferred by the AIE regime. Taking this into account, it is my view that the release of information pursuant to an AIE request is not for the purposes of the performance of the tasks of the public body, but is for the purposes of the legitimate interests pursued by a third party, the requester. Accordingly, I do not consider that disclosure pursuant to an AIE request involves the ‘performance of the tasks’ of the public authority and the exclusion in the final subparagraph of Article 6(1) does not apply.
44. That being so, there are ‘three cumulative conditions’ in order for processing to be lawful in accordance with Article 6(1)(f): “… first, the pursuit of a legitimate interest by the data controller or by a third party; second, the need to process personal data for the purposes of the legitimate interests pursued; and third, that the interests or freedoms and fundamental rights of the person concerned by the data protection do not take precedence” (Case C-597/19 M.I.C.M., at paragraph 106). For convenience, this is known as the ‘legitimate interest test”.
45. In relation to the first condition, the CJEU has confirmed that a wide range of interests is, in principle, capable of being regarded as legitimate (see Case C-26/22 SHUFA Holding at paragraph 76). For example, internet users may have a legitimate interest in having access to internet search engine results containing personal data ( Case C-131/12 Google Spain and Google , at paragraph 81); a person has a legitimate interest in obtaining the personal information of a person who damaged their property in order to sue ( Case C-13/16 Rigas Satiksme at paragraph 29); and a video surveillance system installed to protect the property, health and life of co-owners of a building is likely to be a legitimate interest ( Case C-708/18 Asociatia de Proprietari bloc M5A-ScaraA at paragraph 42). The purpose of the AIE regime is to promote increased public access to environmental information and more effective participation by the public in environmental decision-making, with the aim of making better decisions and applying them more effectively and, ultimately, promoting a better environment (see recitals 1 and 2 of the AIE Directive and Case C-470/19 Friends of the Irish Environment at paragraph 36). The AIE Directive expresses the provision of environmental information in response to an AIE request as a “right of access”, which is conferred on any natural or legal person who makes an application for the information. Taking this into account, and considering the wide range of interests confirmed as legitimate by the CJEU, I consider that a person who requests environmental information from a public authority has a legitimate interest in receiving the environmental information in question (subject to any other exceptions to the right of access that may apply). Accordingly, once a person has made a valid request for environmental information, the first condition of the legitimate interest test is met.
46. Where the environmental information in question is or includes personal data, the only way in which the legitimate interest in receiving the environmental information can be met is by providing access to the personal data in question. Accordingly, the second condition of the legitimate interest test is met.
47. As a result, in practice, it is the third condition of the legitimate interest test on which public authorities must focus most of their attention. The third condition requires ‘the balancing of the opposing rights and interests at issue’, depending on the specific circumstances of the particular case (see Case C-597/19 M.I.C.M. , at paragraph 111).
48. In this context, the opposing interests will be, on the one hand, the right of the data subject to respect for privacy and protection of personal data and, on the other hand, the public interest in the disclosure of the environmental information at issue. This balancing exercise is almost identical to the balancing exercise that is required under Article 4(2) of the AIE Directive and article 10(3) of the AIE Regulations, where personal data is concerned. This means that, although as a matter of principle a public authority must carry out the balancing exercise in Article 6(1)(f) first and again (if needed) under article 10(3) of the AIE Regulations, in practice it is unnecessary for a public authority to go through the exercise twice because the analysis is the same. In my view this means that, in practice, public authorities may deal with AIE requests involving personal data in a relatively straightforward manner, consistent with both the AIE regime and the GDPR.
49. To summarise - once a public authority is satisfied of the following matters, the public authority may be satisfied that the requester has a‘legitimate interest’ in receiving the personal data pursuant to that request and that its disclosure is ‘necessary’ to meet that interest:
- that an AIE request has been made,
- that the requested information is environmental information,
- that the environmental information is or includes personal data, and
- that the data subject has not consented to the disclosure of the personal data.
• The public authority must then weigh the rights of the data subject against the public interest in the disclosure of the environmental information. In weighing that balance, the public authority should consider the specific interests at issue. namely:
• a. The individual’s interest in the protection of their personal data, taking into account the nature of the specific personal data at issue and the data subject’s rights under Articles 7 and 8 of the Charter, as well as any views expressed by the specific data subject regarding disclosure (if, in the circumstances, it is appropriate to seek the data subject’s views); and
• b. The public interest in disclosure of the environmental information, taking into account the public interest in the information at issue, as recognised by recital 1 of the AIE Directive and the rights in Articles 11 and 37 of the Charter, as well as any specific information that may have been volunteered by the requester (see Case C- 619/19 Land Baden-Württemberg , paragraphs 59-61).
50. As with any other exception to release under the AIE regime, if the public authority concludes that the balance falls against release of the personal data, it should go on to consider whether the personal data may be separated from the other environmental information at issue, for example by means of redaction (see Article 4(4) of the AIE Directive and article 10(5) of the AIE Regulations.
Application in this case
51. I am satisfied the information requested by the appellant in this case is environmental information under article 3(1) of the AIE Regulations (see preliminary findings paragraph). I also consider the environmental information at issue, specifically the names of the audit team and designers in the Road Safety Audit report, (their job titles and TII reference numbers where applicable) includes personal data.
52. Regarding the issue of consent, the appellant has set out a number of reasons why he considers that consent has been given by the data subjects regarding their personal data at issue. He said in submission to this Office “Established guidelines require that engineers conducting road safety audit reports are clearly identified and attach a formal signed declaration to their reports. Road safety audit reports for public roads are routinely circulated and published as part of established consultation and planning processes. In my view consent can be assumed.”
53. I accept that there are qualification requirements for a Road Safety Audit Team appointed to carry out Road Safety Audits on the national road network in accordance with Transport Infrastructure Ireland (TII). I also accept that Road Safety Audit reports may be circulated and published as part of the planning process, I consider that this illustrates an awareness and acceptance on the part of the professionals carrying out the report that their work may be made public, including their names.
54. I say this bearing in mind that the Council has said in submission to this Office that it contacted the engineering consultancy service provider to whom the data subjects in question were working on behalf of, regarding the issue of consent. The Council stated that it was informed by the engineering consultancy in question that the individuals did not consent to their personal data being released. It said in submission to the Office that it “contacted Tobin Consulting Engineers and they have not consented to the release of the personal information of their employees.” This Office did not consider it necessary to request a copy of this correspondence (although I note that the Council has offered to provide a copy of the same)– but I accept its submission that consent has not been provided by the data subjects.
55. Having determined the above matters, I am satisfied that the requester has a ‘legitimate interest’ in receiving the personal data at issue pursuant to an AIE request and that its disclosure is ‘necessary’ to meet that interest. I must go on to weigh the rights of the data subjects against the public interest in the disclosure of the environmental information. In respect of the individuals’ interests in the protection of their personal data in this case, I note the names of the audit team and designers in the Road Safety Audit report (as well as their job titles and TII reference numbers) do not fall under any of the special categories of personal data meriting higher protection (see Article 9, GDPR).
56. As I have set out above, although as a matter of principle a public authority must carry out the balancing exercise in Article 6(1)(f) first and again (if needed) under article 10(3) of the AIE Regulations, in practice it is unnecessary for me to go through the exercise twice because in this decision as the analysis is the same.
AIE public interest balancing test
57. In its internal review, the Council referred to the Freedom of Information Act 2014 public interest balancing test concluding: “Having carefully considered the matter and given the strong public interest in protecting the right to privacy, I do not consider the public interest in releasing the names of the relevant individuals outweighs the right to privacy of those individuals. I find therefore, that section 37(5)(a) does not apply.” It does not seem to have considered the AIE public interest balancing test required under article 10(3) of the Regulations in its internal review. It should be noted at this point that the AIE public interest balancing test under article 10(3) of the AIE Regulations differs from that required under FOI as it requires the consideration of an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment. This is set out in recital 1 to the AIE Directive. This is in addition to any specific public interest in the release of the particular information sought.
58. The Council did refer to the AIE public interest test required by article 10 of the AIE Regulations in both its original decision and in its submission to this Office. It said:
“I have determined that the public interest would not be served by disclosing the personal information in these records, due to the public interest in protecting personal information, while being conscious of the public interest in openness and transparency in dealing with public authorities. This information is personal data, and information relating to an actual person, therefore it has not been provided.”
59. In favour of withholding the information at issue – the Council says the information is personal data, and information relating to an actual person, and that there is a strong public interest in the right to privacy. The Council refers to the constitutional right to privacy, as well as the right to privacy set out in the European Convention on Human Rights, incorporated the Convention into Irish law in 2003.
60. I have more broadly considered the individual data subjects interest in the protection of their personal data, taking into account the nature of the specific personal data at issue and the data subject’s rights under Articles 7 and 8 of The Charter of Fundamental Rights of the European Union.
61. When considering individuals’ interest in the protection of their personal data, I have taken into account whether there is likely to be any adverse effect for the individuals or otherwise, if their data is released.
62. In its submission of 23 December 2024, the Council outlined how it believes the release of the name of the individuals, their job titles or their TII Reference number on the report would adversely affect those individuals. It said: “where an appellant continually refers the engineers to their regulatory body then there is an adverse affect on the engineers due to them having to continuously defend themselves before the regulatory body. It could also hinder their job prospects and restrict them in getting promotions. Refusing to release the names comes within the exemption requirements article 8(a)(i) as it is protecting the engineers from the affects of the Appellant’s attempts to use this information for completely different purposes that the information has been sought under AIE regulations.”
63. I am not persuaded by the argument made by the Council in relation to an adverse effect. It is unclear how if the appellant (as things stands) does not know the names of the engineers in questions (hence the AIE request), how he could possibly be knowingly engaging in a pattern of continually referring the engineers in question to their regulatory body. The regulatory body in question provides a complaint/referral mechanism – and it is in no way my role as Commissioner to manage such referrals or pre-empt the outcome of a referral to that body of a particular engineer. I do however note that the Disciplinary Procedures for Breaches of the Code of Ethics which is available on the Engineers Ireland website makes provision for dealing with complaints that are trivial or minor in nature, vexatious, made in bad faith or an abuse of process. The assertion that such a referral, and the outcome of such, would hinder the data subjects job prospects and restrict them from getting promotions is hypothetical and far from a foreseeable outcome. Even if it was the case, I consider that is not inconsistent with aims and purpose of the AIE Regulations to allow members of the public to access the required information to allow them to refer a particular engineer to its regulatory body when they are concerned regarding the carrying out of an important activity such as a Road Safety Audit. As set out above, it is for the regulatory body to protect its members against unfounded, frivolous or vexatious complaints. If any adverse effects were to flow from a well-founded complaint, I consider that these are far outweighed by the greater public interest in ensuring that professionals working in important environmental areas are accountable to their regulatory bodies where appropriate.
64. The Council has said that it contacted the engineering firm concerned during the decision-making process and that the firm did not give consent for the names of these individuals being released – but no further explanation as to how or whether they would be adversely effected has been provided. The data subjects were working in a professional capacity, carrying out a Road Safety Audit report. I cannot see how the release of their names leads to any adverse effect, bearing in mind the engineering consultancy they were working on behalf of, has been clearly identified. I note that the engineering consultancy company clearly lists its staff members on its website, and the area that they specialise in – one being Road Safety. The Roads Transport Team section of the website contains details of 16 member of the team, from the senior management of the team to a recently joined apprentice engineer. The biographies of each team member include names, photographs, professional experience, education achievements and hobbies. The Council says that “the names of the engineers are on Tobin’s website. However, the individual projects that the engineers are engaged in are not up on the website. As such this information is not in the public domain and cannot be said to be already in the public domain”. While I acknowledge the website does not detail the individual projects that the engineers are engaged in, there is a finite number of engineers listed as being on the “Roads Transport Team”, therefore it is a reasonable assumption that the name of the data subject (the author(s) of the report) would at one point, if not now, have been listed on that website. This lends weight to my conclusion that there is no foreseeable adverse impact of the names of the data subjects being released.
65. Additionally, the appellant has pointed to the fact that all registered civil engineers in Ireland are searchable on the Engineers Ireland website and that it is routine for unredacted Road Safety Audit reports to be published. Through conducting a basic online search my investigator has seen examples of the same including a 2022 Road Safety Audit report carried out at the request of Kildare County Council, and a 2024 Road Safety Audit report carried out at the request of Dun Laoghaire Rathdown County Council. The appellant makes the point that TII Standards stipulate that the road safety audit team members are specifically required to sign the reports they produce, and The TII Guidance notes “[…] it should be noted that both the Road Safety Audit Report and Exception Report could be used in future litigation.” I consider that these guidelines recognise that there is a strong public importance in the carrying out of a Road Safety Audit and recognise the importance of ensuring that the individuals who carried out the audit can be easily identified. These points serve to underscore the argument that the release of the names is not likely to result in any adverse impact for those individuals that could possibly outweigh the public interest in releasing the information.
66. The Council contends that there would be a broader adverse effect if the information was released. It said the service provider (engineering consultancy) has not given consent to the release of the names of the engineers. It says: “in carrying out its business, Galway City Council relies on open market bidding and procurement and the trust of individuals, companies, and organisations. We fear that release of this personal information would discourage these companies from tendering and trust in Galway City Council and other public bodies would be diminished as a result.” If I understand the point the Council is making here, it is saying that the engineering firm l has not given consent to the names of the individuals being released, therefore to release them would be a breach of trust and would in effect discourage such companies from tendering for contracts with Galway City Council in future. I am not persuaded by this argument and do not think it is a likely outcome, in particular when no adverse effect of releasing the names of the individual data subjects has been identified. Any company that tenders for a contract with or provides a service for a public authority should be aware of that public authority’s obligations under the AIE Regulations as well as the Freedom of Information Act 2014. In particular, companies working in environmental areas should be aware that even if an exemption under the AIE Regulation applies, it is open to the public authority, or to my Office on appeal to release information where the public interest in disclosure outweighs the interest in refusal.
67. In favour of release, I consider that there is an important general interest in the disclosure of environmental information to meet the purpose of the AIE Directive, in particular by contributing to a greater awareness of environmental matters, a free exchange of views, more effective participation by the public in environmental decision-making and, eventually, to a better environment, as set out in recital 1 to the AIE Directive, and the rights in Articles 11 and 37 of the Charter of Fundamental Right of the European Union.
68. The Council has said that this is not the correct use of Articles 11 and 37 of the Charter of Fundamental Rights of the European Union. The Council in its submission of 23 December 2024, stated “In relation to article 11, this is not the correct use of this article in the authors opinion. Article 11 applies where there is threat to the freedom of expression and right hold opinions and impart information and ideas. The Council are not breaching any of the Appellant’s rights here as they are not being infringed by our decision not to release the personal data of the engineers. The Appellant is not a journalist and his ability to hold an opinion or freedom of expression is not being hindered by the decision not to release the personal data of the engineers. Article 37 relates to integration of policies into the Union that protect the environment. By refusing to release the names of the engineers, there is no impact on the Rights and Freedoms of the Appellant under this article. It is the view of the author that the use of articles 11 and 37 should not be included in the decision.”
69. Article 11 of the Charter is titled “Freedom of Expression and Information”. It provides “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” (my emphasis) Article 37 of the Charter is titled “Environmental protection” and provides “A high level of environmental protection and the improvement of the quality of the environment must be integrated into the policies of the Union and ensured in accordance with the principle of sustainable development.” I consider the rights provided by both article 11 and article 37 of the Charter to be relevant factors for me to consider when weighing up the public interest in the disclosure of the environmental information at issue in this case – much the same way that I have also considered the data subject’s rights under Articles 7 and 8 of the Charter to be relevant factors in this regard (see paragraph 58 above). I reject the Council’s assertion that articles 11 and 37 of the Charter should not be included in this decision – and am not persuaded by the comments made by the Council in this regard.
70. The Council in its submission to this Office on 23 December 2024 stated: “when weighing up the benefit of releasing the personal data or restricting its release, (the Council) determined that releasing the personal data would infringe on the engineers’ rights under article 7 and 8 of the Charter of Fundamental Rights. GCC also invokes the right to privacy under the Constitution.” I agree with the Council that article 7 and 8 of the Charter are factors which should be considered in favour of withholding the information, but as I have set out this should be weighed against the factors in favour of releasing the information.
71. I have also considered the public interest in information on Road Safety Audits generally – bearing in mind Road Safety Audit involves the evaluation of road schemes during design and construction to identify potential hazards to all road users, and is required under the EU Directive on Road Infrastructure Safety Management.
72. I have considered that appellant’s point that Road Safety Audits team members/leaders are subject to specific requirements as set out in TII Standards. There are clear and specific guidelines on the TII website regarding this:
“The Road Safety Audit (RSA) team is appointed by the Employer or their representative for the scheme. The RSA team must be independent of the design team. The qualification requirements for RSA teams are outlined in TII-GE-01025 Road Safety Audit – Audit Team Qualifications. Click here to view the RSA team qualification requirements on the TII Publications website.
The qualification and experience status of individuals making up each proposed RSA team must be checked by TII Safety for approval before each audit. TII approves the individuals within each RSA team, rather than consultancy firms bidding for the work.
Applications for approval of audit teams must be submitted through the TII Road Safety Audit Approvals System (RSAAS) website. The RSAAS website can be accessed here. Road Safety Auditors and Road Safety Audit Clients must register on the RSAAS website before entering the system. Click here to download instructions on registering as an auditor and/or client on the RSAAS website.
The approval procedure must be carried out for each audit stage for each scheme. In order to ensure a consistent approach, all effort should be made to use the same audit team at each audit stage throughout the design and construction of a particular scheme. Notwithstanding this, it may, in certain circumstances, be necessary for TII to refuse approval for the previously approved team at a later stage audit.”
73. I consider there to be a public interest in a member of the public being able to confirm that the members of any Road Safety Audit team on a particular report has the requisite qualifications. Where a member of the public has concerns about the contents of a Road Safety Audit report or how it was carried out, as is clearly the case here, I consider it in the public interest for that member of the public to be able to raise their concerns with the appropriate authority. The appellant has set out in detail what these concerns are and why they are a matter of public interest. “In my view, the content of the road safety audit report provides grounds for a formal complaint to Engineers Ireland regarding the apparent manner in which the authors conducted their report. In addition, the design approved by them is objectively in conflict with the safety recommendations of various road design guidance going back over 25 years.”
74. The appellant has outlined why he believes there is a clear public interest in the names of the individuals specifically being released - so that the issue can be referred to the appropriate authority (Engineers Ireland) which has a formal complaints process for registered engineers. The appellant asserts “The scheme at issue is part of a wider pattern of state funds, including active travel funds, being used in Galway city in a manner that is objectively in opposition to state goals on environmental protection and climate change. In my view it is important to release this information in order to break this pattern and arrive at a situation where state funds are used to support state climate change policy rather than in a manner that objectively undermines it.”
75. I have made no finding on whether the appellant’s concerns are warranted or contain merit, as this is clearly not within my remit as Commissioner for Environmental Information. However, the appellant has raised concerns regarding this Road Safety Audit report and its implications on road safety, any investigation of which by the appropriate authority would be clearly an issue of public interest. While the appellant wishes to utilise the names of the individuals concerned to make a formal complaint to Engineers Ireland, I do not consider this to be the type of adverse effect that would weigh in favour of withholding the information sought. The individuals concerned are working in a profession that operates a formal complaints framework and the handling of such a complaint is a matter for Engineers Ireland. The purpose of such a complaints framework is to enhance transparency and accountability in the relevant profession and it is in keeping with the aims of the Aarhus Convention to enable individuals to make complaints of this nature, where relevant.
76. I do not accept the Council’s argument that the release of the names of the individuals in the Report, would not enhance the “significant environmental information of these documents”. And that “the public interest in the environmental information is served by the content of the documentation and knowing the author of same does not or should not affect the environmental substance of the documents.”
77. Weighing those interests in the balance, I conclude that the public interest in releasing the names of the audit team and designers, including job titles and TII reference number, on the Road Safety report, outweighs the interests served by the refusal.
78. I note the Council has sought to rely on section 37 of the FOI Act as the law which protects the confidentiality of the information here (as required by article 8(a)(i)). As I have already found that the information should be released when applying the GDPR as the law relied on to protect the confidentiality of the information, I do not consider it necessary to consider section 37 of the FOI Act in this regard. I say this because I would be required to apply the same public interest balancing test under AIE regardless of the law relied on to protect the confidentiality of the information – and therefore the outcome would be the same. I have set out my analysis of the public interest balancing test and why the information should be released, starting at paragraph 52 of this decision. The effect of this is that where both s.37 of the FOI Act and the GDPR apply to information held by a public authority relevant to an AIE request, the public authority should consider whether to release or withhold the information by weighing the rights of the data subject against the public interest in the disclosure of the requested environmental information, as I have set out above. I consider that this approach is consistent with a public authorities range of legal obligations in relation to both personal information and access to environmental information.
79. I would note for completeness that given that the Council had consulted with the engineering firm concerned during the decision-making process, I did not consider it necessary to seek further submissions from the engineering firm or the individuals involved before making this decision. I am satisfied that I can adequately consider all relevant issues based on the submissions of the Council and the appellant.
80. The Council in its submission to this Office of 23 December 2024 states that by refusing to release the names of the authors of this report, it is applying the GDPR principles and adhering to the regulations set out in the AIE Regulations. I have set out in detail above how the release of the names in compliant with the principles of the GDPR. The Council also referred to the May 2013 Guidance for Public Authorities and others on implementation of the Regulations. The Council in particular referred to paragraph 11.2 and 15.4 of this document. The Council goes on to state that “the Commissioner appears to be ignoring the guidance documents that it cites in its decision. The Commissioner should consider 11.2 and 15.4 as part of the decision.” I note that these guidelines are now 12 years old, and that there has been significant development in the law in relation to both access to environmental information and data protection in that time. Further, the Minister’s guidelines are not binding. I am satisfied that the analysis that I have set out above is an appropriate and lawful interpretation of article 8(a)(i) of the AIE Regulations.
81. The Council stated that “the OIC upheld the Council’s decision making regarding a FOI in the same document and the same information request (case reference OIC – 141229-B4C4Q7). Due to the various access regimes and various governing bodies over these access regimes, there is a potential for a conflict in decision making. It is evidence from OIC – 141229-B4C4Q7 that the OIC’s decision is being overrules and the appellant is obtaining data via another access regime. The Commissioner rules that the information is personal data under FOI as per section 37(1) of the FOI Act 2014. If this is personal data under the FOI Act, then it is still personal data under AIE regulations and GDPR/Data Protection Act, 1988 to 2028, as amended.
82. If this decision remains as is, then a requester can ignore the FOI Act and ignore GDPR and obtain personal data as the Environmental regulations can overturn any decision made by the Information Commissioner and Data Protection Commissioner.
83. In relation to this point, I would point out that the Freedom of Information 2014 and AIE Regulations are separate and distinct regimes, with separate legal bases. The GDPR is again a separate legal instrument and I have set out above my view of how it interacts with the AIE Regulations. I do not consider it appropriate for me to go into an analysis of the differences between the regimes in this decision, save to say as a general rule, where a request relates to environmental information, the AIE regime will provide greater rights of access to a requester than FOI and other advantages to the requester such as cost protection when challenging a decision of the Commissioner. The fact that this appellant made a previous request for the same information under the FOI regime, is incidental and in no way predetermines the outcome of his appeal under the AIE Regulations. This appeal concerns the appellant’s valid request for environmental information made under the AIE regime, not the FOI regime.
84. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision and direct release of the information.
85. A party to the appeal or any other person affected by this decision may appeal to the High Court on a point of law from the decision. Such an appeal must be initiated not later than two months after notice of the decision was given to the person bringing the appeal.
Ger Deering
Commissioner for Environmental Information