Cinneadh
Ms X and Laois County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-109807-Q1J0L1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-109807-Q1J0L1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in refusing access to further relevant information relating to Parts 1, 2, 3, 4, and 5 of the appellant’s request under article 7(5) of the AIE Regulations; in refusing access to Record 2 and Records 4-14 identified as relevant to Parts 2, 4, and 5 under articles 8(a)(i) and 8(a)(iv) of the AIE Regulations; and in refusing access to Record 3 identified as relevant to Part 3 under articles 8(a)(i), 8(a)(iv) and 9(1)(b) of the AIE Regulations.
13 October 2025
1. On 21 February 2021, the appellant submitted a request to the Council “for access to environmental information relating to quarrying/excavations of an esker and surrounding lands at Clonaslee, County Laois. A general site location plan is showing at Annex 1. The application includes lands, which were the subject of High Court Reference 2016 No. 352 MCA and are presently the subject of an Appeal before the Court of Appeal Reference 2018 220. I make the following request.
(i) A copy of the Settlement Agreement referred to in the judgement of Mr Justice Max Barrett delivered on 5th February 2018.
(ii) A copy of the Restoration Plan detailing all steps to the [be?] taken to restore the said lands to agricultural use within a period of four weeks as referred to in the judgement of Mr Justice Max Barrett delivered on 5th February 2018.
(iii) A copy of all costs incurred by LCC in relation to the matter.
(iv) A copy of all assessments, surveys, inspections, reports in relation to the lands (and the two relevant SACs within close proximity) 2014 – to date, which have been compiled in relation to the lands and which were used to inform the most appropriate restoration applicable to the lands since the unauthorised developments occurred
(v) A copy of all assessments, surveys, inspections, reports in relation to the lands (and the two relevant SACs within close proximity) 2014 – to date, which have been compiled in relation to the lands.”
2. On 19 March 2021, the Council applied an extension under article 7(2)(b) of the AIE Regulations.
3. On 23 April 2021, the Council issued its decision.
(i) Regarding Part 1 of the appellant’s request, the Council stated that it had identified one relevant record (Record 1) which can be accessed by via the Courts website (https://ww2.courts.ie/acc/alfresco/f33ae78a-4e10-4460-bec8-7c2e31a2c4ef/2018_IEHC_69_1.pdf/pdf#view=fitH) and referred to article 7(3)(a)(i) of the AIE Regulations.
(ii) Regarding Part 2 of the appellant’s request, the Council stated that it had identified thirteen relevant records (Records 2-14), which it was withholding under article 9(1)(b) of the AIE Regulations.
(iii) Regarding Part 3 of the appellant’s request, the Council stated that it had identified thirteen relevant records (Records 2-14), which it was withholding under article 9(1)(b) of the AIE Regulations.
(iv) Regarding Part 4 of the appellant’s request, the Council stated that it had identified thirteen relevant records (Records 2-14), which it was withholding under article 9(1)(b) of the AIE Regulations.
(v) Regarding Part 5 of the appellant’s request, the Council stated that it had identified thirteen relevant records (Records 2-14).
4. On 4 May 2021, the appellant sought an internal review of the Council’s decision. In doing so, the appellant contended that adequate searches had not been carried out. She also made further submissions regarding the specific parts of her request, which are summarised below:
(i) Regarding Part 1, she submitted that the Council misinterpreted this part of her request and the record at the link was not the “settlement agreement” sought.
(ii) Regarding Part 2 (records 2-14), she disputed the Council’s reliance on article 9(1)(b) of the AIE Regulations.
(iii) Regarding Part 3 (records 2-14), she disputed the Council’s reliance on article 9(1)(b) of the AIE Regulations.
(iv) Regarding Part 4 (records 2-14), she disputed the Council’s reliance on article 9(1)(b) of the AIE Regulations.
(v) The appellant did not refer to Part 5, however, as noted above she disputed the Council’s refusal of Records 2-14.
5. On 2 June 2021, the Council issued its internal review decision, wherein it affirmed its original decision. The Council outlined its view that adequate searches had been carried out.
(i) Regarding Part 1, the Council issued a copy of the “settlement agreement” to the appellant.
(ii) Regarding Part 2, the Council affirmed its refusal, however relied on article 8(a)(i) of the AIE Regulations.
(iii) Regarding Part 3, the Council affirmed its refusal under article 9(1)(b).
(iv) Regarding Part 4, the Council affirmed its refusal, however relied on article 8(a)(i) of the AIE Regulations.
(v) Regarding Part 5, the Council affirmed its refusal, however, relied on article 8(a)(i) of the AIE Regulations.
6. On 2 July 2021, the appellant submitted an appeal to this Office. The Council, in initial correspondence to this Office indicated that it was also relying on articles 8(a)(i) and article 8(a)(iv) to refuse access to Record 3 (Part 3), and article 8(a)(iv) to refuse access to Record 2 and Records 4-14.
7. The Commissioner for Environmental Information has a power under article 12(9)(a) of the AIE Regulations to refer any question of law arising in an appeal to the High Court for determination. In November 2021, my predecessor used this power to refer a question to the High Court in another appeal(Coillte Teoranta and People Over Wind) , seeking the High Court’s guidance on the interpretation of articles 8(a)(iv) and 9(1)(c) of the AIE Regulations, to the extent they involved an interplay with the Freedom of Information Act 2014. As this appeal raised identical legal issues in relation to article 8(a)(iv) of the AIE Regulations, it was not possible to progress this case until the Court provided its legal guidance. As such, this appeal was placed on holding pending the receipt of the Court’s decision. The High Court issued its judgment on 28 April 2023 and it is available at [2023 IEHC 227 ]. This appeal was subsequently reactivated.
8. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Council and the appellant, as outlined above, and to correspondence between this Office and both the Council and the appellant. I have also examined the content of the record 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
9. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
10. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
11. During the course of this review, the Council identified a handwritten note relevant to Part 1 of the appellant’s request. The Council stated that it was agreeable to releasing that note, therefore I do not consider it to be at issue in this appeal. I expect the Council to release the handwritten note to the appellant.
12. I am satisfied that the scope of this appeal concerns whether the Council was justified in refusing access to further relevant information relating to Parts 1, 2, 3, 4, and 5 of the appellant’s request under article 7(5) of the AIE Regulations; in refusing access to Record 2 and Records 4-14 identified as relevant to Parts 2, 4, and 5 under articles 8(a)(i) and 8(a)(iv) of the AIE Regulations; and in refusing access to Record 3 identified as relevant to Part 3 under articles 8(a)(i), 8(a)(iv) and 9(1)(b) of the AIE Regulations.
13. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision.
14. It is clear from the comments of the Court of Appeal in Redmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal.
15. While the AIE Regulations do not explicitly provide that the burden of proof rests with the public authority in relation to justifying a refusal to make information available, the Commissioner considers that the scheme of the Regulations, and of Directive 2003/4/EC upon which the Regulations are based, makes it clear that there is a presumption in favour of release of environmental information.
16. I assessed whether it was necessary for this Office to separately notify/consult relevant third parties for the purposes of this review, and I determined that this was not required in the circumstances of this case.
17. While I am required by article 12(5)(b) to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the information at issue and the extent to which I can describe certain matters in my analysis is limited.
18. As noted, this case concerns whether the Council was justified in refusing access to further relevant information relating to Parts 1, 2, 3, 4, and 5 of the appellant’s request under article 7(5) of the AIE Regulations; in refusing access to Record 2 and Records 4-14 identified as relevant to Parts 2, 4, and 5 under articles 8(a)(i) and 8(a)(iv) of the AIE Regulations; and in refusing access to Record 3 identified as relevant to Part 3 under articles 8(a)(i), 8(a)(iv) and 9(1)(b) of the AIE Regulations.
19. Article 7(1) of the AIE Regulations requires public authorities to make available environmental information that is held by or for them on request. Article 7(5) of the AIE Regulations is the relevant provision to consider where the question arises as to whether the requested environmental information is held by or for the public authority concerned. In cases where a public authority has effectively refused a request under article 7(5), this Office must be satisfied that adequate steps have been taken to identify and locate relevant environmental information, having regard to the particular circumstances. In determining whether the steps taken are adequate in the circumstances, a standard of reasonableness must necessarily apply. It is not normally this Office’s function to search for environmental information.
20. In its original and internal review decisions the Council noted that it had contacted the Planning Department in an effort to locate relevant environmental information. In her internal review request, the appellant stated “The extent of your searches is noted, but for completeness I do not accept that adequate searches are done. In my view searches and enquiries should be made with all relevant Council Departments for all information requested including for example finance, property management, legal department, the Chief Executive’s office etc. It appears to me that adequate searches have not been conducted. The internal reviewer should ensure that full searches are carried out covering all categories of information and in all areas of the Council.” In its internal review decision, the Council confirmed that the Planning Department was the relevant Department for the request and that it was satisfied that “no other Departments in the Council would hold records relevant to this request”.
21. In her submissions to this Office, the appellant stated the following regarding Part 1 “the Council has provided a copy of the Court Order that was made based on the settlement agreement and not the settlement agreement itself. As is clear from the judgment of Mr Justice Barrett, a note of the settlement was handed into court. The judge clearly had access to a copy of that note since he refers to it at paragraph 2 of the judgment. The requestor sought access to this note. It is clear therefore that the Council has mis-interpreted this part of the request and has withheld, without justification, the settlement agreement between the parties to the planning enforcement proceedings.” In its submissions to this Office, the Council provided a copy of the relevant handwritten note that was held by its solicitor. The Council stated that both the Planning Department and the Solicitor confirmed that no other settlement agreement or note on the matter is held. The Council stated that it was agreeable to releasing the handwritten note.
22. In its submissions to this Office, in addition to the detail above and included in the original and internal review decisions, the Council also included the following in support of its reliance on article 7(5) of the AIE Regulations:
• The Council reiterated that the Planning Department was the relevant Department and also stated that no records were destroyed in relation to the file. The Council stated that the Planning Department is responsible for matters relating to unauthorised development – other departments would not hold any records relating to this file. The Council stated “if documentation was received by another section, they would ensure that same was passed to the relevant Department for attention.”
• The Council stated that the Senior Planner, the Executive Planner, and two Administrative Officers were consulted. The Council stated that searches were undertaken in relation to the specific unauthorised development file on the matter. The Council stated that the file is a hard copy file located in the enforcement unit within the Planning Department and searches were carried out on that file as that was the most appropriate location for the search. The Council stated that all records relating to the matter were on that file as it was being retained for Court. The Council noted that there was also a digital file retained on the G:Drive, which was also checked.
• The Council noted that Record 3, which relates to part 3, was prepared for Court and does not represent all the costs incurred by the Council in this matter. It explained that Record 3 is a record of costs which were recorded and there is no list of all costs incurred by the Council in this matter. It noted that overhead costs, i.e. stationery, postage etc. and office accommodation costs i.e. heating, lighting, cleaning etc. are not apportioned to specific cases. It stated that there is no facility on its financial management system whereby this information can be extracted and as there is no requirement for the Council to maintain information in that manner, it is not possible to re-create a list of costs incurred retrospectively; a list of all costs incurred by the Council does not exist.
23. The general thrust of the Council’s position is that it holds no further relevant environmental information. I wish to emphasise that it is outside my remit to adjudicate on how public authorities carry out their functions generally, including with respect to their environmental information management practices. I have no role in assessing how public authorities collect, maintain and disseminate environmental information. My role concerns reviewing appeals of requests for access to environmental information, which is held by or for the relevant public authority and no more than that.
24. Having considered the explanations provided by the Council, I am satisfied that the Council has taken adequate steps to identify and locate all relevant environmental information held by it in this particular case. Accordingly, I find that article 7(5) of the AIE Regulations applies and the Council was justified in refusing access to further relevant information relating to Parts 1, 2, 3, 4, and 5.
25. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries).
26. 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.
27. Article 9(1)(b) must be read alongside article 10 of the AIE Regulations. Article 10(1) of the AIE Regulations, provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Article 10(3) of the AIE Regulations requires a public authority to consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal. Article 10(4) of the AIE Regulations provides that the grounds for refusal of a request shall be interpreted on a restrictive basis having regard to the public interest served by disclosure. Article 10(5) of the AIE Regulations provides that nothing in article 8 or 9 shall authorise a public authority not to make available environmental information which, although held with information to which article 8 or 9 relates, may be separated from such information.
28. 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.
29. The Minister’s Guidance, in considering “The Course of Justice” states: “Environmental information relating to anything which is the subject matter of any legal proceedings, or of any formal inquiry (whether past or present), or any preliminary investigation, may be refused. Examples would include information in connection with intended prosecution of offences by the Director of Public Prosecutions or by local or other public authorities; information affecting enforcement proceedings; material arising from public or disciplinary inquiries; and information relating to preliminary or other proceedings instituted by the European Commission” (paragraph 12.3).
30. The Council is refusing access to Record 3 under article 9(1)(b) of the AIE Regulations. In its submissions to this Office, the Council included the following comments:
• In order to quantify costs for Court proceedings, the Council created a record of some of the costs incurred in relation to this matter. This together with invoices for legal fees was refused in accordance with article 9(1)(b) of the AIE Regulations as the matter of the determination of costs continues to be before the courts.
• This list does not represent all costs incurred by the Council. Expenditure on such items as postage, heating, lighting, and general overheads are not included in this list as these are not recorded or apportioned on a case by case basis and it would therefore not be possible to identify same.
• The appeal of the Council in relation to costs was allowed in full and the Defendants’ appeal in relation to costs was struck out with costs being awarded to the Council – same to be adjudicated in default of agreement.
• The matter is before the Taxing Master who is a judge or barrister appointed by the Court to adjudicate on such matters. It is considered that the release of the records could be seen as undermining this process. The release of the information would convey information which the Council is relying on for the purpose of seeking to recoup the costs associated with the case.
• The Council checked with its solicitor in relation to this matter on 25 March 2025 and was advised that a determination on the full costs has not yet been made by the High Court. On 9 October 2025, the Council confirmed to this Office “that the position in relation to costs remains the same.”
31. In her submissions to this Office, the appellant included the following comments:
• In relation to Category 3, the Council’s costs, the Council refers to ongoing legal proceedings in relation to costs. It essentially states that environmental information relating to anything which is the subject of legal proceedings may be refused. This statement is incorrect. Regulation 9(1)(b) is only engaged where the public authority can demonstrate that release would have an adverse effect on the course of justice. For the avoidance of doubt insofar as the Minister’s Guidance supports the Council’s position, it is incorrect and should be ignored.
• To justify the engagement of Regulation 9(1)(b) the Council would have to show that access to information would jeopardise the ability of a party to or prejudice an active judicial procedure in order to justify engaging Regulation 9(1)(b). There is no way that public access to the Council’s costs could have this effect.
• Firstly, the Council has not identified any active judicial procedure. The High Court made no order for costs; there was an appeal, but it seems to have concluded. Based on information in the public domain, there is no pending judicial procedure.
• Secondly, knowing the Council’s costs cannot prejudice any procedure relating to costs since by definition a costs dispute concerns a bill served by one party on another. The respondents presumably know the Council’s costs, so why cannot members of the public?
• Thirdly there will be costs that are not part of the litigation, namely the ongoing costs relating to the supervision of the restoration. These do not come with the scope of Regulation 9(1)(b) since there is no pending judicial procedure relating to them.
• The Council’s public interest balancing test is pro-forma and incorrect. It fails to take into account that there is a public interest in being able to access costs incurred by a local authority in relation to enforcement of unauthorised development, particularly where there has been damage to the environment. On the other hand, the Council has not pointed to any countervailing interest, nor has it weighed up the interests.
32. Record 3 was the only record identified as relating to costs. I am satisfied Record 3 is related to the matter of the award of costs that is still subject to ongoing proceedings and there is detail on the Court’s website . I understand that there are details in the public domain. The Council explained that Record 3 was prepared in order to quantify costs. I note the appellant’s contention that both parties to the legal proceedings may be aware of the costs at issue, however I do not consider that this means that the release of Record 3 would not adversely affect the course of justice. I have examined the information at issue in Record 3, I am satisfied that it is directly concerned with the matter of the award of costs that is currently before the taxing master (in the course of justice). The taxing master / legal costs adjudicator is responsible for assessing the fair and reasonable amount that one party to a legal dispute has to pay the other side. I note that it may also be the case that a settlement could be reached between the parties. In the circumstances of this particular case and having regard to the content of the Record 3, I am satisfied that release would prejudice the effectiveness and fairness (i.e. adversely of the course of justice) the costs proceedings that are currently ongoing. Accordingly, I am satisfied that article 9(1)(b) is engaged in respect of Record 3.
33. Having found that article 9(1)(b) is engaged in respect of Record 3, I must also consider article 10. In accordance with articles 10(3) and 10(4), it is necessary to weigh the public interest in disclosure against the interest served by refusal.
34. In favour of disclosure, I note the public interest in openness and transparency in environmental matters and the costs involved in planning and enforcement matters. I note the comments regarding the public interest set out in the appellant’s submissions to this Office, detailed above. During the course of this review, the appellant was invited to provide further submissions to this Office regarding article 10. The appellant did not add any further detail in her response. Other than general openness and transparency in respect of environmental matters, the appellant has not identified a specific public interest in favour of disclosure of the information at issue.
35. In favour of refusal, I have considered the need to ensure that the process of determining costs is not undermined by the early release of the specific cost details being considered and examined to determine appropriate costs. I am not satisfied that the appellant has established that there is a specific public interest in the release of this particular information, such that it would justify interfering with the interest being protected by article 9(1)(b) i.e. the course of justice.
36. Having weighed the above factors, I am satisfied that the public interest in disclosure of Record 3 does not outweigh the interest served by refusal. I find, therefore, that the Council was justified in refusing access to that information under article 9(1)(b) of the AIE Regulations. It is important to state that this case is only concerned with the factual circumstances and information at issue. Any decision made in this case does not create a precedent; each case is considered on its own merits.
37. In accordance with article 10(5), I have considered whether Council could have separated out information held with information to which article 9(1)(b) applies. Having examined the specific content of the information at issue in Record 3, I am satisfied that the Council was unable to consider article 10(5) in this case. I consider that to do so would render the information misleading and/or meaningless.
38. Having found that the Council was justified under article 9(1)(b) of the AIE Regulations in refusing access to Record 3 it is not necessary for me to go on and consider articles 8(a)(i) and 8(a)(iv) of the AIE Regulations in respect of that information.
39. Article 8(a)(i) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect 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. This provision seeks to transpose Article 4(2)(f) of the AIE Directive, which in turn is based on Article 4(4)(f) of the Aarhus Convention. Article 8(a)(i) must also be read alongside article 10 of the AIE Regulations. I am satisfied that article 10(1) of the AIE Regulations does not apply in this case.
40. The Council is refusing access to Record 2 and Records 4-14 identified as relevant to Parts 2, 4, and 5 under articles 8(a)(i) of the AIE Regulations. I am satisfied that the records can generally be described as follows:
(i) Record 2 is a restoration plan submission in relation to complying with the conditions of a High Court Order. It was prepared on behalf of an identified company (the first named respondent in the High Court case 2016/352 MCA) and in agreement with two named individuals (the second and third named respondents in the High Court case 2016/352 MCA).
(ii) Record 5 is a planning memorandum report dated 14 July 2017 in relation to the site inspection.
(iii) Record 4 and 6 to 14 are inspection reports for various dates that contain details of the site inspections, some of which have the headings “Site Inspection”, “Assessment”, and “Recommendation”.
41. The Council’s submissions included the following comments:
• Record 2 sets out proposals for work to be done on lands which are privately owned and is considered to be personal information. (In its internal review decision, the Council commented “The Restoration Plan relates to all three named respondents. It is considered that the release of the information would involve the release of the personal information of two of the respondents”).
• Although some general information regarding the lands, the ownership of the lands and the requirement to complete the Restoration Plan may be known publicly, the specific content of the plan is not. The information contained within the Plan relates to a number of parties including the two individuals who are both identifiable from the record – the Council does not consider that it is possible to part-grant access as the record itself is about the restoration of private property.
• Records 4 to 14 are the reports of staff who carried out the investigations in relation to activities on lands which are privately owned by two named individuals (the second and third named respondents). The release would involve the release of their personal information. The reports record the activities which were observed on the site and in some of the reports there are references to both landowners. As the lands are owned by both individuals, it is considered that the release of the records disclose their personal information.
• The reports were used by the Council in preparing a case under the Planning and Development Act 2000 (as amended).
• The Council considers that the information at issue is personal information having regard to the definitions as outlined in the Freedom of Information Act 2014 as provided for in Section 37(1) and the definitions at Section 2 (vii) and (xiii). The information is about identifiable individuals regarding activities on their property and offences which have been committed. The Council provided details in respect of its application of section 37(1) of the FOI Act.
• The Council considers that the release of the information would not be of benefit to the individuals concerned.
• The release of the records will disclose:
o Information in relation to property which is privately owned by a number of individuals or their representatives
o Information in relation to activities on lands which are privately owned.
o Information that an investigation was being carried out by Council officials into offences.
• The adverse effect of this is that the release of the records will involve the release of information which the FOI Act has defined as being personal information. Once the information is released, the Council has no control over what happens to it or how it is used and has no means of protecting it. The persons or their representatives which are the subject of investigations may be subjected to unfair commentary and harmful speculation.
• In addition, it could ultimately lead to members of the public seeking to access similar records relating to other unauthorised development. Individuals who are the subject of complaint would not be confident in how the Council manages their personal information and could choose not to engage to resolve issues. The Council would then be faced with a situation whereby it would have to resort to initiating legal proceedings to “force” issues to be addressed, thereby increasing costs and delaying the process.
• Whilst a period of time has elapsed since the reports were prepared, it is considered that personal information does not lose its confidentiality over time. In addition, the matter of costs is still before the Courts.
• Article 4(1) of the GDPR defines “personal data” as “any information relating to an identified or identifiable natural person (‘data subject’). Article 4(1) of the GFPR specifies, moreover that, “an identifiable natural person is one who can be identified directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.” Article 5(1)(b) of the GDPR provides that “personal data shall be collected for specified explicit and legitimate purposes and not further processed in a manner that is incompatible with those purposes. The information was collected for specified purposes i.e. in connection with enforcement proceedings and the disclosure of same would constitute further processing of the information in a manner that would be incompatible with the purposes of its collection. The data subjects have not consented to its disclosure and disclosure would adversely affect the confidentiality of the information.
• The Council considers that the public interest is better served by not releasing the records. In addition to the public interest factors for and against release as outlined in the submission, members of the public who are the subject of an investigation and are entitled to have their personal information held and treated in a confidential manner and to fair and due processes. It is also not in the public interest that this confidentiality is undermined.
42. In her submissions to this Office, the appellant included the following comments:
• Categories 2, 4 and 5 can be dealt with together since these parts have been refused based on an incorrect application of Regulation 8(a)(i).
• Firstly, the information sought in these parts of the request do not constitute personal information. They are in fact information about unauthorised excavation and quarrying on land and information on the measures agreed to restore the land to agricultural use. There is nothing personal in this information since it is solely concerned with the state of the land.
• While the land may be owned by individuals, the information sought is not their personal information under the AIE Regulations merely by virtue of this ownership. If that were the case then the concept of personal information in Regulation 8(a)(i) would be deprived of its meaning and purpose, since ultimately all information has some connection with individuals.
• Even if it could be considered personal information, it is not confidential. The information relates to a restoration agreement and inspection reports presumably drafted by or for the Council. Therefore, the information is not confidential to the individuals concerned.
• Even if it could be considered confidential personal information, as a matter of policy, individuals cannot rely on the protection of 8(a)(i) to keep details of their own wrongdoing secret. Therefore, the adverse effect on the confidentiality of personal data cannot encompass an adverse effect on confidential personal data which might conceal details of a person’s wrongdoing, particularly where that wrongdoing relates to unauthorised development and environmental damage that a court has ordered be restored.
• In terms of the public interest balancing exercise, the Council has not pointed to any adverse effect which might be contemplated by this exception and failed to take into account that the information relates to admitted unauthorised development and a restoration plan. The public has a right to know about such unauthorised development and should be able to see what plans have been agreed to remediate the land and to be able to access the inspection reports so to ensure the land is property remediated and that there is transparency and accountability in relation to the restoration.
43. When relying on article 8(a)(i) of the AIE Regulations a public authority must show that – a) the information at issue is personal information relating to a natural person, who has not consented to its disclosure; b) the personal information has an element of confidentiality, c) the confidentiality of that personal information is protected by law; and d) the disclosure of the information at issue would adversely affect that confidentiality.
44. The AIE regulations do not contain a definition for “personal information”. While article 8(a)(i) refers to “personal information”, it may be noted that both the AIE Directive and the Aarhus Convention refer to “personal data”. Article 4(1) of the General Data Protection Regulation (Regulation (EU)2016/679 – the ‘GDPR’) defines personal data as “any information relating to an identified or identifiable natural person (‘data subject’)”.
45. The judgment of the European Court of Justice in C-434/1, states:
“34. The use of the expression ‘any information’ in the definition of the concept of ‘personal data’, within Article 2(a) of Directive 95/46, reflects the aim of the EU legislature to assign a wide scope to that concept, which is not restricted to information that is sensitive or private, but potentially encompasses all kinds of information, not only objective but also subjective, in the form of opinions and assessments, provided that it ‘relates’ to the data subject.
35. As regards the latter condition, it is satisfied where the information, by reason of its content, purpose or effect, is linked to a particular person.”
46. As noted, the Council is refusing access to Record 2 and Records 4-14 under article 8(a)(i) of the AIE Regulations. Having examined the records, I note that the information concerned relates to landowner(s) as well as various third party(ies), including commercial entity(ies). Article 8(a)(i) of the AIE Regulations applies only in respect of information relating to an identified or identifiable natural person. Having examined the records it appears that some of the information contained therein, including details of the activities carried out, possibly relates to commercial entity(ies). However, given that there are relevant individuals (landowner(s)), I am satisfied that all of the information concerned contained in the records is inextricably linked such that it is personal data relating to identifiable natural persons.
47. I note that the Council referred to both the FOI Act 2014 and the GDPR in seeking to apply article 8(a)(i) of the AIE Regulations. In the circumstances, of this case, I consider it appropriate to assess the GDPR prior to considering the FOI Act, if necessary.
48. It is appropriate at this stage to briefly set out the approach to personal data under the AIE Regime. I have set this out in detail in decisions, OCE-135716-R4G8T1 and OCE-137000-X7Y9N3, these decisions should be referred to for a more detailed analysis of the same.
49. 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). 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.”
50. 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 152) 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.
51. 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).
52. 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.
53. 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.
54. 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”.
55. 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-26/22SHUFA Holding at paragraph 76). Taking this into account, once a person has made a valid request for environmental information, I consider the first condition of the legitimate interest test is met.
56. 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.
57. 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 C597/19, at paragraph 111).
58. 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.
59. 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: a) that an AIE request has been made, b) that the requested information is environmental information, c) that the environmental information is or includes personal data, and d) that the data subject has not consented to the disclosure of the personal data.
60. 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. 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).
61. In this case, I am satisfied that a valid AIE request has been made (this is not in dispute), and that the requested information in environmental information. I also consider the environmental information at issue includes personal data. There is no evidence before me to suggest that data subjects have consented to the disclosure of their personal data.
62. Having determined the above matters, I am satisfied that the appellant in this case 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 and weigh the rights of the data subjects against the public interest in the disclosure of the environmental information. In respect of the data subjects’ interest in the protection of their personal data in this case, I note that the personal data at issue (names) does not fall under any of the special categories of personal data meriting higher protection (see Article 9 GDPR).
63. I understand that the information is of a type that the Council simply does not make publicly available. Section 7(2) of the Planning and Development Act 2000 requires the planning authority to enter on the planning register, and make available to the public:
“(r) particulars of any warning letter issued under section 152 , including the date of issue of the letter and the fact of its withdrawal, if appropriate,
(s) the complete decision made under section 153 on whether an enforcement notice should issue, including the date of the decision,
(t) particulars of any enforcement notice issued under section 154 , including the date of the notice and the fact of its withdrawal or that it has been complied with, if appropriate,”
64. Section 152 provides that where it appears to the planning authority that unauthorised development may have been carried out, it shall issue a warning letter. Section 153 provides that the planning authority must, following investigation, make a decision on whether to issue an enforcement notice and that the decision made and the reason for same must be entered in the planning register. Section 154 provides that where a decision to enforce is made under section 153, the planning authority shall, as soon as may be, serve an enforcement notice.
65. The Act of 2000 requires the inclusion of the details specified above in the Planning Register. Under section 7(6)(a), the Register shall be kept at the offices of the planning authority and shall be available for inspection during office hours. I am satisfied that the Act of 2000 does not amount to a requirement to make the information at issue in this case publicly available. It is considerably more detailed than the information that is required to be included in the Register.
66. I also note the guidance document concerning planning enforcement that was published by the then Department of Environment, Community and Local Government in 2012, entitled "A Guide to Planning Enforcement in Ireland". That Guidance provides as follows:
"Generally speaking, all documentation relating to enforcement actions (including, for example, correspondence; planner's report to the Manager; Manager's decisions; representations made under section 152 of the Planning Act; warning letters; enforcement notices; notes on site visits, etc.) should be readily available to all parties directly involved and to the general public. Exceptions to this general approach arise where
• availability of documents could prejudice a possible court action;
• availability of documents would reveal the identity of complainants (in order to prevent possible intimidation);
• the planning authority exercises a discretion that sensitive personal data should not be disclosed."
67. Having considered the Guidance, it seems to me that it cannot reasonably be interpreted as meaning that the documents that are suggested for publication are therefore available to the general public. I note that the guidance is simply that; it is not, nor does it purport to be, a statutory requirement. Moreover, the guidance suggests that it remains at the discretion of the Council to decide what documents it wishes to make publicly available and it also acknowledges that such documentation may not always be appropriate for publication.
68. The information at issue in this case concerns the Council’s investigations of alleged unauthorised development at an identified property and a restoration plan submission.
69. 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 Rights of the European Union. I have also considered the public interest in information on planning enforcement and alleged unauthorised development as a whole.
70. In favour of withholding, I have considered the relevant parties’ interests 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. I also acknowledge that this is information that is not typically published by the Council and have had regard to the Council’s submissions above. When considering the data subject’s interest in the protection of their personal data, I have taken into account whether there is likely to be any adverse effect on them, if their data is released. I am also mindful that the right to privacy has a constitutional dimension having been recognised as an unenumerated right under the Constitution, and of the strong protection afforded to privacy rights under Article 8 of the European Convention on Human Rights.
71. As I mentioned above, the Department with responsibility for planning legislation published guidance which indicates that documents such as those at issue in this case should be made publicly available, with certain exceptions. As such, it might reasonably be argued that such guidance represents a general policy of promoting openness in respect of planning enforcement matters. On the other hand, the Act of 2000 provides that only certain, specified information relating to planning enforcement must be made available, through the entry of certain specified details on the planning register which must be available for public inspection. This contrasts with a requirement for a far more significant level of transparency in respect of planning application processing, where, for example, the entire planning file must be publicly available. It seems to me that had the Oireachtas seen fit to afford the same levels of transparency to enforcement matters as it did to the planning application process, it could have provided for same in the Act of 2000 but did not.
72. There is a clear distinction between information generated as part of the planning processes and allegations of unauthorised development. A planning application simply seeks permission to do something; there can be no inference of wrongdoing. This is very different to information on planning enforcement investigations, where it is clear that there has been an allegation of, and potential for there to have been, wrongdoing. I have found that the information in this case relates to individuals and it contains allegations of wrongdoing and details of investigations into same.
73. I note the comments regarding the public interest set out in the appellant’s submissions to this Office, detailed above. During the course of this review, the appellant was invited to provide further submissions to this Office regarding article 10. The appellant did not add any further detail in her response. Other than general openness and transparency in respect of environmental matters, the appellant has not identified a specific public interest in favour of disclosure of the information at issue.
74. Notwithstanding the age of the information in this case and that it is related to matters that have been before the Courts and while I accept there is a general interest in that information, having regard to its specific content, I am satisfied that the interest in refusing the information at issue, the privacy rights of the third parties involved, outweighs the public interest in disclosure. I am not satisfied that the appellant has established that there is a specific public interest in the release of this particular information, such that it would justify interfering with the privacy rights of the third parties involved. I find, therefore, that the Council was justified in refusing access to Record 2 and 4-14 under articles 8(a)(i) of the AIE Regulations. Again, it is important to state that this case is only concerned with the factual circumstances and information at issue. Any decision made in this case does not create a precedent; each case is considered on its own merits.
75. As noted, the Council also 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 not 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 the public authority is required to apply the same public interest balancing test under AIE regardless of whether it is the GDPR or section 37 of the FOI Act, relied on to protect the confidentiality of the information. In either case the public authority is obliged to 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. I have set out this balancing of interests above and have found that the information should be refused. I consider that this approach is consistent with a public authority’s range of legal obligations in relation to both personal information and access to environmental information.
76. In accordance with article 10(5), I have considered whether Council could have separated out information held with information to which article 8(a)(i) applies. Having examined the specific content of the information at issue in this case, I am satisfied that the Council was unable to consider article 10(5) in this case. I consider that to do so would render the information misleading and/or meaningless.
77. Having found that the Council was justified under article 8(a)(i) of the AIE Regulations in refusing access to Records 2 and 4-14 it is not necessary for me to go on and consider article 8(a)(iv) of the AIE Regulations in respect of that information.
78. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the Council’s decision to refuse access to further relevant information relating to Parts 1, 2, 3, 4 and 5 under article 7(5) of the AIE Regulations, Record 3 under article 9(1)(b) of the AIE Regulations, and Records 2 and 4-14 under article 8(a)(i) of the AIE Regulations. I also expect the Council to release the handwritten note identified during the course of the review to the appellant.
79. 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