Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-149674-X6S4C4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in withholding relevant information under article 9(1)(b) of the AIE Regulations
8 November 2024
1. On 12 March 2024, the appellant made the following request to the Department: “I am looking for a report, and all parts thereof, including appendices and volumes, regarding the impacts of turf-cutting on blanket bogs designated as SACs and NHAs. The report, I understand, was commissioned by the Department and prepared by BEC Consultants in 2017 or thereabouts.”
2. The Department responded to the appellant on 11 April 2024. It said:
“I identified 51 records (one overarching report and 50 site reports) which are relevant to your request. I have decided to refuse access to these records, having regard to the provisions of article(s) 9.1(b) and 9.1(c) of the AIE Regulations as detailed below:
9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect— (b) the course of justice (including criminal inquiries and disciplinary inquiries) 9. (2) A public authority may refuse to make environmental information available where the request— (c) concerns material in the course of completion, or unfinished documents or data
The reasons for my decisions are as follows:
• The requested report was commissioned in response to a letter of formal notice issued from the European Commission to the Irish authorities on 28 January 2011.
• In response to an Additional Reasoned Opinion issued from the European Commission to the Irish authorities on 29 September 2022, this desk-based survey is currently being repeated/updated to derive trends in turf cutting impacts with results expected later in 2024. The NPWS have not approved the original draft and its associated site reports for publication.
• Infringement proceedings have escalated to the European Court of Justice following a referral on 13/03/24.
• The Department is not in a position to determine the exact case being made against Ireland, therefore on that basis it would be premature to release any survey that could prejudice the defence of that case.
Schedule of records
I have attached a schedule of records with this letter. This lists the records that I consider relevant to your request. It provides a brief description of each record and the decision I have made on each record. Where I have decided to refuse access to a record, it specifies the Article of the AIE Regulations under which this refusal has been made. For these records, it also records how I have applied the public interest test pursuant to Article 10(3) and 10(4).
Emissions
I have in accordance with Article 10(1), examined whether your request relates to information on emissions into the environment and have determined that it does not. Public interest test Furthermore, 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 consider the following public interest factors favouring the release of the records are relevant:
• Accountability and objectivity of public bodies in how it carries out its functions and makes decisions relating to the environment
• The public interest in members of the public exercising their rights under the AIE Regulations.
• The right of the public to be informed of matters relating to the environment
I consider the following public interest factors favouring the withholding of the records are relevant:
• The provisional status of the information being sought
• Potential for adverse effect on legal proceedings
• Importance of not disadvantaging a Government body in their discharge of key responsibilities
On this basis, I have determined that the public interest would not be served by disclosing the information you request.”
3. On 17 April 2024 the appellant requested an internal review from the Department. The Department issued its internal review on 4 May 2024.
“Result of the internal review of this decision
As you will be aware from the acknowledgement of your request for an internal review, I was assigned to review your request. I made a decision on this review on 4th June 2024.
I have examined the records relevant to this request. I affirm the decision of the original decision maker to refuse access to the information requested under Article(s) 9.1(b) and 9.1(c) of the AIE Regulations, as detailed below:
9. (1) A public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect—
(b) the course of justice (including criminal inquiries and disciplinary inquiries)
9. (2) A public authority may refuse to make environmental information available
where the request -
(c) concerns material in the course of completion, or unfinished
documents or data
The reasons for my decision are as follows:
- The requested report was commissioned in response to a letter of formal notice issued from the European Commission to the Irish authorities on 28 January 2011.
- In response to an Additional Reasoned Opinion issued from the European Commission to the Irish authorities on 29 September 2022, this desk-based survey is currently being repeated/updated to derive trends in turf cutting impacts with results expected later in 2024. The NPWS have not approved the original draft and its associated site reports for publication.
- Infringement proceedings have escalated to the European Court of Justice
following a referral on 13/03/24.
The Department is not in a position to determine the exact case being made
against Ireland, therefore on that basis it would be premature to release any
survey that could prejudice the defence of that case.
Schedule of records
I have attached a schedule of records with this letter. This lists the records that I
consider relevant to your request. It provides a brief description of each record and the
decision I have made on each record. Where I have decided to refuse or partially
refuse access to a record, it specifies the Article of the AIE Regulations under which
this refusal has been made. For these records, it also records how I have applied the
public interest test pursuant to Article 10(3) and 10(4).
Emissions
In reaching the above decision and where information has been refused under Article 8
and/or 9(1)(c), I have in accordance with Article 10(1), examined whether your request
relates to information on emissions into the environment and have determined that it
does not.
Public interest test
Furthermore, in line 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 consider the following public interest factors favouring the release of the records are
relevant:
- Accountability and objectivity of public bodies in how it carries out its functions
and makes decisions relating to the environment
- The public interest in members of the public exercising their rights under the
AIE Regulations.
- The right of the public to be informed of matters relating to the environment
- I consider the following public interest factors favouring the withholding of the records
are relevant:
- The provisional status of the information being sought
- Potential for adverse effect on legal proceedings
- Importance of not disadvantaging a Government body in their discharge of key
responsibilities
I have determined that the public interest would not be served by disclosing the
information you request.”
4. The appellant appealed to this Office on 11 June 2024. He gave the following reasoning for his appeal: “I am unhappy that a report which was sent to the European Commission, relating to the state of health of a nationally important habitat was not released to me. I feel the information in this report is in the public interest.”
5. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department of Housing, Local Government and Heritage. 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’).
6. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
7. On 7 October 2024, I issued a draft decision to the appellant with the finding that the Department was justified in withholding relevant information under article 9(1)(b) of the AIE Regulations.
8. The appellant responded on 21 October 2024 with the following observations:
The Department states that they "have in accordance with Article 10(1), examined whether your request relates to information on emissions into the environment and have determined that it does not". It is difficult to see how they arrived at this conclusion. Degraded peat is one of the greatest sources of greenhouse gas emissions in our land use sector. The Environmental Protection Agency (EPA) states that wetlands (a significant portion of which are blanket bogs) cover 17.2% of Ireland and that they represent a significant source of greenhouse gases, stating that "the most recent Inventory Report shows that the Wetland category contributed the largest source of emissions each year compared to all other categories. The emissions for 2022 were approx. 3.8 Mt CO2 eq from a total area of just over 1.2 Mha" (EPA, 2024).
The Department states that it "is not in a position to determine the exact [legal] case [taken by the EC] being made against Ireland, therefore on that basis it would be premature to release any survey that could prejudice the defence of that case". This is spurious since the original proceedings against Ireland for non-compliance with the Habitats Directive in relation to turf-cutting on Special Areas of Conservation date to 2011. The legal case against Ireland has been laid out therefore, for more than a decade. Indeed you highlight in your own correspondence that "the Commission sent a letter of formal notice to Ireland in January 2011, followed by a reasoned opinion in June 2011". It is not a reasonable position to say that Department is not in a position to determine the case against it since it is the same case that has been underway for 13 years.
The Department believes that it is not in the public interest for this report to be released, the reasons for which include the "provisional status" of the report, even though it was produced in 2017. It is not a reasonable assertion to claim that a report of this vintage remains "provisional". It is welcome that your office concludes that "there is [...] a clear public interest in the release of this information". The Habitats Directive was transposed into Irish law in 1997. At this time turf-cutting on blanket bog was to have ended. This did not happen. Nearly three decades on, the Department, instead of taking action, is still compiling reports. It is not reasonable, after such an extended lapse in time, and given that we are in a climate and biodiversity emergency, to continue to prevaricate and withhold information as they are doing. The Department states that they are updating the information for completion in 2024. This may well be the case however this would constitute a new report and not a revision of a report that was prepared seven years ago. It is reasonable to give the State time to compile and present new data, it is not reasonable to use this as an excuse to withhold information that your office has agreed is in the public interest.
The Department does not explain why releasing these records would "adversely affect the course of justice". "Justice" in this case would constitute the full and correct implementation of the Habitats Directive. It is no state secret that Ireland has failed to implement the Habitats Directive and in 2023 the European Court of Justice found against Ireland on this charge. Given that the state is a party to the case I would argue that withholding records of this nature is designed to 'adversely affect the course of justice' in that it shields the Department for public scrutiny. The "course of justice" should not be synonymous with benefiting the state's position in its case against the EC.
Based on the wording of article 9(1)(b) of the AIE Regulations I do not believe that the Department has made a case that releasing the records would constitute an "adverse effect on the course of justice".
9. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the internal review decision of the Department and to affirm, annul or vary it.
10. My review in this case is concerned with whether the Department is entitled to rely on articles 9(1)(b) and or 9(2)(c) of the AIE Regulations to refuse access to information within the scope of the appellant’s request.
11. The Department has identified 51 records relevant to the appellant’s request. It has described these records as “One overarching report and 50 site reports. The one “overarching report” is labelled “Turf Cutting GIS Review Report Volume 1”. From examining this record I can see it contains the methodology used for the turbary GIS review; a summary of the results, and a discussion on these including consideration of how the data may best be used.
12. The remaining records or site reports consist of notes on each of the 50 Special Areas of Conservation, and advice from the review in relation to where turf-cutting should be discontinued and where the option of limited continued cutting may be considered (subject to screening for Appropriate Assessment).
13. As stated above, the Department has sought to refuse release of all 51 records and is relying on article 9(1)(b) and 9(2)(c) of the AIE Regulations to do so. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries). This provision seeks to transpose Article 4(2)(c) of the AIE Directive, which in turn is based on Article 4(4)(c) of the Aarhus Convention. Article 4(2)(c) of the AIE Directive provides that Member States may provide for a request for environmental information to be refused if disclosure of the information would adversely affect the course of justice, the ability of any person to receive a fair trial or the ability of a public authority to conduct an enquiry of a criminal or disciplinary nature.
14. Article 9(1)(b) must be read alongside article 10 of the AIE Regulations, which provides for certain limitations on the ability of a public authority to refuse environmental information. 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 and 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.
15. The appellant has argued that the information requested relates to emissions. This is in response to the Department’s statement that "in accordance with Article 10(1), examined whether your request relates to information on emissions into the environment and have determined that it does not".
16. Article 10. (1) states “Notwithstanding articles 8 and 9 (1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment. “As the Department has not sought to rely on articles 8 or 9(1)(c), article 10(1) does not apply. Therefore I will not consider whether the information requested relates to emissions.
17. The wording of article 9(1)(b) of the AIE Regulations makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the public authority must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the course of justice (see C-619/19 Land Baden-Württemberg v DR). The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical.
18. In the internal review, the Department states the requested report was commissioned in response to a letter of formal notice issued from the European Commission to the Irish authorities on 28 January 2011. An Additional Reasoned Opinion was issued from the European Commission to the Irish authorities on 29 September 2022.
19. The Additional Reasoned Opinion set out the following:
“The Commission is calling on Ireland (INFR(2010)2161) to take action to halt the continued cutting of peat within Special Areas of Conservation (SACs) designated to conserve raised bogs and blanket bogs under the Habitats Directive (Directive 1992/43/EEC). The European Green Deal and the Biodiversity Strategy for 2030 aim for the EU to halt biodiversity loss by protecting and restoring biodiversity. In addition to their biodiversity value, peat bogs are vital carbon sinks when healthy. Their protection and restoration assist Ireland in meeting its climate change goals not only in keeping the peat in the ground, but also by avoiding the very high carbon and other air pollution emissions which are caused when peat is burnt as a fuel. The Irish authorities have taken action to stop cutting, including by compensating peat and turf cutters. However, cutting activities are still ongoing and enforcement action appears to have stalled. Restoration activities have begun on some raised bogs SACs, but this is too slow given the importance of this priority habitat and its precarious state. With regard to blanket bogs SACs, there appears to be no regime controlling ongoing cutting with the cutting for domestic use exempt from control. The Commission sent a letter of formal notice in January 2011 followed by a reasoned opinion in June 2011. After a long dialogue with the Irish authorities, for the reasons mentioned above, the Commission has decided to issue an additional reasoned opinion to Ireland, which now has two months to respond and take the necessary measures. Otherwise, the Commission may decide to refer Ireland to the Court of Justice of the European Union.”
20. The Department states that the desk based survey (that the relevant records consists of) is being repeated/updated to derive trends in turf cutting impacts with results expected later in 2024. The Department says the NPWS have not approved the original draft and its associated site reports (the 51 records at issue) for publication.
21. The Department has stated that infringement proceedings escalated to the European Court of Justice following a referral on 13 March 2024. The European Commission published the following news update on its website on 13 March 2024. It confirms the proceedings the Department refers to, and provides some useful background:
“Today, the European Commission decided to refer Ireland (INFR(2010)2161) to the Court of Justice of the European Union for failure to apply the Habitats Directive (Directive 92/43/EEC) to protect sites designated for raised bog and blanket bog habitats from turf cutting.
The Habitats Directive requires Member States to designate their most precious natural habitats and to protect them from harmful activities. These sites in Ireland continue to be degraded through drainage and turf cutting activities, and insufficient action is being taken to restore the sites. These areas are biodiversity hotspots playing host to important insect and bird species. They are categorised as “priority” habitats under the Directive due to their unique qualities. Peat bogs are also vital carbon sinks when healthy, while a UN report estimated that Ireland's degraded peatlands emit 21.5 million tonnes of CO2 equivalent per year.
The Commission sent a letter of formal notice to Ireland in January 2011, followed by a reasoned opinion in June 2011. Despite some progress, the Irish authorities have not fully addressed the shortcomings. For instance, whilst some restoration work has been undertaken on raised bog sites, no action has been taken regarding blanket bog sites where Ireland has failed to put in place an effective regulatory regime to protect these unique bog sites. Therefore, the Commission sent an additional reasoned opinion in September 2022. The Commission considers that efforts by the Irish authorities have, to date, been insufficient and is therefore referring Ireland to the Court of Justice of the European Union.
Background
The European Green Deal and the Biodiversity Strategy for 2030 indicate that it is crucial for the EU to halt biodiversity loss by protecting and restoring biodiversity. Ireland hosts some of the most unique active raised bog sites in the EU as well as large areas of still active blanket bog.
Their protection and restoration could assist Ireland in meeting its climate change goals, not only by keeping healthy peat in the ground but also avoiding emissions when peat is burnt as a fuel. While traditionally families cut peat by hand, cutting today is done by machine resulting in additional damage to the structure of these sites. Digging and drainage fundamentally undermines their hydrology making restoration challenging. Ireland must redouble its efforts to move turf cutting machines away from these sites before the damage done makes restoration impossible.”
22. Having considered the contents of the internal review provided by the Department and the statements issued by the Commission, on balance I am satisfied that the release of the main report and associated site reports would adversely affect the course of justice. From my review of the information sought, it is clear that the report is highly relevant to the infringement proceedings. The Department has stated it is not in a position to determine the exact case being made against Ireland, therefore the release of this information “could prejudice the defence of” the infringement proceedings currently being taken against Ireland. I consider it reasonable that Ireland is provided with the space to effectively prepare its defence to the proceedings. To direct release of the information sought at this point could prejudice the preparation of this defence and therefore would adversely affect the course of justice. I therefore find that article 9(1)(b) applies to the information sought.
23. The appellant said in response to my draft decision that “The Department does not explain why releasing these records would "adversely affect the course of justice". "Justice" in this case would constitute the full and correct implementation of the Habitats Directive. It is no state secret that Ireland has failed to implement the Habitats Directive and in 2023 the European Court of Justice found against Ireland on this charge. Given that the state is a party to the case I would argue that withholding records of this nature is designed to 'adversely affect the course of justice' in that it shields the Department for public scrutiny. The "course of justice" should not be synonymous with benefiting the state's position in its case against the EC.” I have considered these points, but note that these particular infringement proceedings only escalated to the European Court of Justice this year - following a referral on 13 March 2024. The appellant’s reference to finding against Ireland in 2023 refers to separate infringement proceedings related to another part of the Habitats Directive. I also note that it may well be the case that the Department’s reliance on article 9(1)(b) would likely cease to be justified after the infringement proceedings have concluded – at which point it may be appropriate for the Department to release the records in question for “public scrutiny”.
24. In conclusion, I accept that the release of the records in question may, as indicated by the Department, prejudice the defence of the infringement proceedings. I therefore find that article 9(1)(b) of the AIE Regulations applies to the information sought.
Public interest balancing test
25. As I have concluded that the information sought comes within article 9(1)(b) of the AIE Regulations, I will consider whether the public interest served by disclosure outweighs the interest served by refusal as required by article 10(3).
26. The Department in its internal review made a number of points in favour of disclosure of the information. These include “Accountability and objectivity of public bodies in how it carries out its functions and makes decisions relating to the environment, the public interest in members of the public exercising their rights under the AIE Regulations, and the right of the public to be informed of matters relating to the environment.”
27. In favour of withholding the information it has set out the following points: “The provisional status of the information being sought, Potential for adverse effect on legal proceedings, Importance of not disadvantaging a Government body in their discharge of key responsibilities.”
28. In favour of disclosure, I have considered the general public interest in disclosure of environmental information, and information related to alleged illegal turf cutting. As set out above, the European Commission has recently referred Ireland to the Court of Justice of the European Union for failure to protect designated raised bog and blanket bog habitats from turf cutting under the Directive. The allegation is that the bogs in question have been degraded due to drainage and continued turf cutting – and that insufficient action is being taken to restore the sites. The importance and wider implication of this issue is underscored by the Commissions comments from March 2024 when it announced it was starting infringement proceedings: “Ireland hosts some of the most unique active raised bog sites in the EU as well as large areas of still active blanket bog. Their protection and restoration could assist Ireland in meeting its climate change goals, not only by keeping healthy peat in the ground but also avoiding emissions when peat is burnt as a fuel”. There is therefore a clear public interest in the release of this information.
29. On the other hand, in favour of refusal, the Department has made the argument that there is the potential for adverse effect on legal proceedings. I should add here that it is not incumbent on the public authority to establish that the interest in refusing be a public interest, rather it can be any interest. In this case, I note the need by the Department to effectively prepare its response to infringement procedures initiated by the European Union. I consider that there is a strong public interest in the effective operation of the infringement procedure mechanism in particular in relation to environmental legislation, and this includes ensuring that state parties can effectively respond to cases brought by the European Commission.
30. Having considered all of the above factors, I find that on balance the interest in disclosure is outweighed by the interest in refusal in this case.
31. The Department concluded in its decision that “I have determined that the public interest would not be served by disclosing the information you request.” While the outcome may be the same, I would note that the conclusion that I have set out in paragraph 30 more effectively reflects the requirements of the AIE Regulations.
32. Given that I have found the information in question to be protected under article 9(1)(b) of the Regulations I am not required to go on and consider the applicability of the other exemption provision relied upon, namely, article 9(2)(c) of the AIE Regulations.
33. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Department’s decision.
34. 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