Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-153450-L2V1V5, OCE-153396-R2Y2F0, OCE-153919-Z4D8V8, OCE-153206-W6P9H1, OCE-153204-H5L9Y4
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified under the AIE Regulations in refusing the information sought.
13 December 2024
1. Each of these cases relates to a request for environmental information relating to forestry. The appeals were received by this Office between 29 October and 25 November 2024. On examination of the casefiles these appeals have been identified as cases where the reasons provided in the decisions issued by the Department were not sufficient having regard to the AIE Regulations and Directive.
2. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In carrying out my review, 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’).
3. In accordance with article 12(5) of the AIE Regulations, the role of this Office in each case is to review the Department’s internal review decision and to affirm, annul or vary it.
4. I acknowledge that the volume of AIE requests in relation to forestry issues continues to present a significant challenge to the Department. The Department must continue to be mindful of its duty to provide adequate reasons in first instance decisions where an AIE request is being refused in an effort to reduce the number of appeals received by this Office. I would encourage the Department to consider proactive dissemination of frequently requested material through its open data portal or any other means available in an effort to reduce requests and subsequent appeals. The ongoing cooperation of the staff within the AIE unit of the Department and this Office where decisions of the Department are appealed is welcome.
5. In OCE-153450-L2V1V5 the request was part granted with the appellant being informed by the Department in the original decision that direct contact was made with subject matter experts who may have access to the information that was requested, and that these subject matter experts carried out searches of their personal email accounts to search for relevant records. No further details of any searches carried out by the Department in order to locate records within the scope of the appellants AIE request were communicated to the appellant. The Department also informed the appellant that it had “deemed that three records require redaction under the following articles: Article 9 (1)(c) and 8 (a)(i)” while giving no further detail of the reasons for the redactions.
6. Following an internal review, the Department affirmed its original decision and the appellant was informed by the Department that “a search was also conducted on eDocs”. In addition, the Department again informed the appellant that of the nine records which were being released it had “deemed that three records require redaction under the following articles: Article 9 (1)(c) and 8 (a)(i)” while not providing adequate details of the reasons for the redactions at any stage of the decision making process.
7. In OCE-153396-R2Y2F0 the request was part granted with the Department informing the appellant that direct contact was made with subject matter experts who may have access to the information that was requested, who carried out searches of their personal email accounts. No further details of any searches carried out by the Department in order to locate records within the scope of the appellants AIE request were communicated to the appellant. The Department also informed the appellant that it was making redactions to the documents which were being released under Articles 8 (a)(i) & 9 (1)(c) of the AIE Regulations, while not providing sufficient detail of the reasons for these redactions.
8. The appellant requested an internal review, in which she questioned the absence of an attachment to an email dated 15 February 2024 which was released, in addition to the relevant redactions. The Department affirmed its original decision, providing no further details in relation to relevant searches carried out, and advising that the attachment to the email of 15 February 2024 was being refused under Article 9 (1)(c) of the AIE Regulations as set out in the schedule of records, and that all of the redactions “are covered by AIE Regulations 8(a)(i)” while not providing adequate details of the reasons for the redactions.
9. In OCE-153919-Z4D8V8, the appellant requested records relating to the Departments Forest Licence Viewer system in the form of GIS data including shapefiles and associated attribute data. The decision maker informed the appellant that his request was being refused under Article 7(3)(a)(i) as “DAFM does not currently release GIS Data”. Following an internal review request by the appellant, the Department affirmed its original decision, informing the appellant that “there is currently no policy in place to release GIS data” while not referring to any article of the AIE regulations or providing adequate details of the reasons for the decision.
10. In OCE-153206-W6P9H1, the Department were instructed to carry out a new internal review of its original decision by this Office in September 2024. Having carried out this review the Department located 10 additional records which came within the scope of the appellants original AIE request. In relation to searches conducted in order to locate relevant records the Department informed the appellant that it had contacted a relevant staff member who may hold records and that he had conducted a search of his email account and located the additional records.
11. No further details in relation to any other searches which the Department may or may not have carried out were communicated to the appellant. In the records which were released there is communications with other staff members which suggest that they were involved in the relevant process and may hold additional records, however no details of these staff members carrying out searches for records within the scope of the original request are included in the internal review decision. There is also reference to previous draft documents which may come within the scope of the request in the email thread of 06 February 2024. This draft has not been included in the material which has been release and no reasons for its refusal have been communicated to the appellant.
12. In cases such as these where insufficient details of searches for records have been communicated in relevant decisions. I cannot be satisfied that reasonable searches have been undertaken by the Department in order to locate all records which may come within the scope of requests.
13. In OCE-153204-H5L9Y4 the Department part-granted the request which was for information on formal or informal meetings during 2024 between the Department and Coillte. The Department informed the appellant of its decision to part-grant the request as the only information available was relevant dates of the meetings, with no other records located within the scope of the request. In relation to relevant searches which were conducted in order to locate relevant records, The Department advised the appellant that following contact with subject matter experts, a response of no records available in relation to this request was returned.
14. On the basis of the search information communicated by the Department, I again cannot be satisfied that reasonable searches have been undertaken by the Department in order to locate all records which may come within the scope of the request.
15. Article 7(3)(a)(i) of the AIE Regulations provides that where a request has been made to a public authority for access to environmental information in a particular form or manner, access shall be given in that form or manner unless the information is already available to the public in another form or manner that is easily accessible. Article 7(3)(a)(i) of the AIE Regulations seeks to transpose Article 3(4)(a) of the AIE Directive, which provides that where an applicant requests a public authority to make environmental information available in a specific form or format (including in the form of copies), the public authority shall make it so available unless it is already publicly available in another form or format which is easily accessible by applicants.
16. It is important to note that article 7(3)(a)(i) of the AIE Regulations must be read alongside article 7(3)(b) of the AIE Regulations, which provides that where a public authority decides to make available environmental information other than in the form or manner specified in the request, the reason therefore shall be given by the public authority in writing.
17. Article 7(5) of the AIE Regulations is the relevant provision of the Regulations when a request is refused on the grounds that a public authority does not hold the information sought, as follows:
“7(5) where a request is made to a public authority and the information requested is not held by or for the authority concerned, that authority shall inform the applicant as soon as possible that the information is not held by or for it.”
18. In cases where refusal is based on article 7(5) of the Regulations, the reasons for the conclusion that no relevant information is held by or for the public authority should be provided to the appellant. The requirement under article 7(5) of the AIE Regulations for a public authority to clearly set out the actions it has taken in response to a request is not only necessary for this Office in its considerations but also gives confidence to the appellant that suitable search procedures were conducted in response to their request.
19. Article 8(a)(i) 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.
20. This provision 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”.
21. Article 9(1)(c) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect commercial or industrial confidentiality, where such confidentiality is provided for in national or European law to protect a legitimate economic interest. This provision seeks to transpose Article 4(2)(d) of the AIE Directive, which, in turn, is based on Article 4(4)(d) of the Aarhus Convention. The Minister’s Guidance, in considering article 9(1)(c) of the AIE Regulations, states:
“The fact that a person or company asks for information to be treated as confidential does not of itself establish it as such for the purpose of the Regulations, and the public authority must satisfy itself that real and substantial commercial interests are threatened. In addition, the fact that the release of information (for example, in relation to a pollution incident) might damage the reputation of a company is not of itself adequate reason for withholding it.” (paragraph 12.4).
22. Article 9(1)(c) 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.
23. When relying on article 9(1)(c) of the AIE Regulations, a public authority must show that the information at issue is commercial or industrial in nature; that the commercial or industrial information has an element of confidentiality; that the confidentiality of that commercial or industrial information is provided for in law to protect a legitimate economic interest; and that the economic interest, and thereby its confidentiality, would be adversely affected by disclosure of the information at issue. The public authority must demonstrate a clear link between disclosure of the information that has actually been withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
24. The duty to give reasons for the refusal of requests arises not only by virtue of the AIE Regulations and Directive but is also recognised generally as a core principle of administrative law and a fundamental element of constitutional justice (see, for example, Meadows v Minister for Justice [2010] IESC 3 and Balz & Anor v An Bord Pleanála & Ors [2019] IESC 90). Both of these judgments, in the same way as the AIE Regulations, make it clear that where a requester has all or part of a request refused, they are entitled to be provided with clear reasons for that refusal. This duty arises so that the requester can take a view as to whether they consider refusal justified, or whether they wish to exercise their entitlement to have the refusal reviewed, whether at internal review stage or through an appeal to this Office.
25. The judgment of the High Court in Right to Know v An Taoiseach [2018] IEHC 371 notes that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot, to my mind, constitute a sufficient reason for the refusal”.
26. This view aligns with the decision of the Court of Justice of the EU in C-619/19 Land Baden Württemberg v DR. This decision contains some useful guidance in relation to the application of exceptions generally. The CJEU noted in particular, at paragraph 69 of its judgment: “As the Advocate General has observed in point 34 of his Opinion, [the] obligation to state reasons is not fulfilled where a public authority merely refers formally to one of the exceptions provided for in Article 4(1) of Directive 2003/4. On the contrary, a public authority which adopts a decision refusing access to environmental information must set out the reasons why it considers that the disclosure of that information could specifically and actually undermine the interest protected by the exceptions relied upon. The risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.”
27. It is clear from my review of the relevant decision-making records in each of these appeals that the Department’s decision-making process was not satisfactory having regard to the responsibilities placed on public authorities by the AIE Regulations, therefore it is not possible for the appellant to discern why his requests have been refused.
28. Given the circumstances of the appeals subject to this decision, I am satisfied that the most efficient way to deal with these appeals is to remit each case to the Department for review of the relevant decisions. While it would have been open to me to seek further submissions from the Department in respect of each appeal, I am satisfied that the AIE regime is best served by dealing with these cases in this manner. This Office is facing a significant backlog of appeals, and this is only exacerbated when public authorities do not provide sufficient reasons for their decisions on requests at first instance. This decision therefore annuls the internal review decisions in each appeal and the Department should now issue a new internal review decision to the appellant in each case.
29. Having carried out a review under article 12(5) of the AIE Regulations, I annual the decision of the Department in each appeal. The Department should now issue a new internal review decision in each case.
30. 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