Cinneadh
Mr X and DAA Public Limited Company
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150834-J0G1H0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-150834-J0G1H0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether certain information is “environmental information” within the meaning of the AIE Regulations and whether DAA was justified in withholding relevant information under article 9(1)(b) of the AIE Regulations
13 October 2025
1. The appellant’s request in the case relates to material and correspondence between DAA, or consultants or third parties acting on behalf of DAA, with Professor Mathias Basner.
2. By way of general background, in 2007, DAA was granted planning permission, following an appeal to An Bord Pleanála (now An Coimisiún Pleanála), to build a new runway at Dublin Airport, known as the North Runway. The planning permission included conditions requiring mitigation measures to be put in place by DAA. In 2020, DAA applied for planning permission to amend these conditions, a proposal known as the North Runway Relevant Action (NRRA).The NRRA was approved by Fingal County Council in August 2022; however, this decision was also subject to appeals. In July 2025, An Coimisiún Pleanála granted permission for the NRRA with revised conditions ( Ref. PL06F.314485 ).
3. Tom Philips & Associates (TPA) (planning consultants) have advised DAA on the North Runway planning application and were retained by DAA to prepare a first party response to a third-party appeal against the above August 2022 decision of Fingal County Council.
4. Mathias Basner is a professor in the Department of Psychiatry at the University of Pennsylvania's Perelman School of Medicine. Dr. Basner is an internationally recognised expert in the effects of noise on sleep and health. In 2023, Dr. Basner consulted for TPA in relation to “traffic curfews at Dublin Airport and their effects on sleep”. This is referenced in a disclosure statement in a publication from the National Institutes of Health, part of the U.S. Department of Health and Human Services. (See https://pmc.ncbi.nlm.nih.gov/articles/PMC10851844/ )
5. On 13 November 2023, the appellant submitted an AIE request to DAA seeking “all documents, reports, emails, presentations, scientific papers, records of meetings and correspondence between the daa, or consultants or third parties acting on behalf of the daa, with Professor Mathias Basner”. In its original decision dated 11 December 2023, DAA stated that twenty-seven (27) records had been identified which related to the request. It granted access in full to two (2) records and refused the remaining twenty-five (25) records citing article 8(a)(ii) and article 9(2)(d)/9(1)(b) of the AIE Regulations. On 12 December 2023, the appellant sought an internal review. On 10 January 2024, DAA affirmed the original decision to refuse access to the information requested under articles 8(a)(ii) and article 9 of the AIE Regulations; a decision which was appealed to this Office in OCE-146446-Z8R7J . In the decision on that appeal, dated 22 February 2024, the Commissioner annulled the decision of DAA due to its failure to provide adequate reasons for refusal and directed it to undertake a fresh internal review process in respect of the request.
6. On 20 June 2024, DAA provided the appellant with a fresh decision which identified nine (9) records relating to his request. DAA granted one (1) record, identified as publicly available and refused the remaining eight (8) records on the grounds of article 9(1)(b) of the AIE Regulations.
7. On 26 July 2025, the appellant submitted a further appeal to this Office.
“… I'm confused as to this revised decision letter. It has 9 records whereas the original request had 27 records.
…
Professor Basner had worked for the daa on a submission regarding the effects of noise on awakenings. That work has concluded and the submission process is over. The case is with An Bord Pleanala. This work of Professor Basner is not in the course of completion and is final. There is no course of justice involved (9(1)(b). It is of utmost public interest that advice from a recognised expert such as Prof Basner should be made available to the public as it relates to their health and the impact of awakenings on their sleep due to aircraft noise at night. I'm concerned that I received a 2nd decision letter months later with a different schedule…”
8. It may be noted that article 12(4)(a) of the AIE Regulations provides that an appeal to the Commissioner must be made not later than one month after the internal review decision has been, or was required to be, notified to the applicant. Under article 12(4)(b) of the Regulations, however, the Commissioner may extend this time limit. On 8 August 2024, this Office invited submissions from the appellant outlining why the Commissioner should consider extending the time limit for initiating his appeal. Following consideration of those submissions, and in the circumstances of this case, the Commissioner considered it reasonable to extend the time limit and the appeal was duly accepted on 15 August 2024.
9. On 15 August 2024, DAA was provided with a copy of the appellant’s statement of appeal and was requested to forward, within three (3) weeks or by 5 September 2024, both the subject matter information/records at issue (“main records”) and a final submission explaining and justifying the basis for its decision.
10. On 5 September 2024, DAA provided this Office with a schedule listing forty-seven (47) main records. Copies of these records were also made available to this Office. This schedule listed eight (8) records as “Refused” under article 9(1)(b) of the AIE Regulations (Records 1, 1.1, 3, 4, 7.1, 7.2, 7.3, and 19.1). The decision in respect of thirty-seven (37) records was listed as “NA” (taken as not applicable). Of these, thirty-four (34) records (Records 2, 5, 6, 7, 8, 9, 10, 11, 11.1, 12, 13, 13.1, 13.2, 14, 15, 15.1, 16, 17, 17.1, 18, 19, 20, 20.1, 21, 22, 23, 23.1, 24, 25, 26, 27, 28, 29, and 32) were noted as not coming within the definition of “environmental information” (taken as a reference to article 3(1) of the AIE Regulations); two (2) records were noted as outside of scope (date of request) (Records 30 and 31); and one (1) record had no position noted against it (Record 10.1). One (1) record (Record 32.1) was listed as “Publicly available” and one (1) further record (Record 1.2) was listed as “Granted”.
11. In relation to the appellant’s comments regarding a “different schedule”, DAA submitted that “in the second review, [the decision maker had] considered some documents from the first review to not be environmental information. This has resulted in changes to the schedule.” DAA went on to confirm that access to eight (8) records was being refused under article 9(1)(b) of the AIE Regulations, stating: “These records are directly linked to the North Runway Relevant Action (NRRA)… a live planning application which is currently under appeal and with An Bord Pleanála (ABP) for determination... [and]… Furthermore, the NRRA is intrinsically linked to judicial review proceedings which daa have initiated in respect of an enforcement notice issued by [Fingal County Council] in relation to flight movements.”
12. On 1 October 2024, the investigator assigned to this case wrote to the appellant and provided an overview of the forty-seven (47) records listed as relating to his AIE request, and the position of DAA in relation to each record. The investigator also advised the appellant that, having carried out a preliminary examination of the records, it could be noted that some of the additional material related solely to administrative arrangements for payment/invoice processing (containing, in some instances, sensitive information including bank account details) and she queried whether such records could be excluded from the scope of the review. On 1 October 2024, the appellant confirmed that all records related to invoices and payments may be excluded.
13. On 2 October 2024, the investigator wrote to DAA, outlining the scope of appeal and inviting final submissions in support of its decision. Focused submissions were received from DAA on 16 October 2024. In relation to records withheld on the basis that they do not constitute “environmental information” under article 3(1) of the AIE Regulations, DAA submitted that should the Commissioner find that these records do constitute environmental information, DAA also seeks to rely on article 9(1)(b) of the AIE Regulations to withhold them.
14. I am directed by the Commissioner for Environmental Information to carry out a review of this appeal. I have now completed this review under article 12(5) of the Regulations. In so doing, I have had regard to all submissions made by the parties, and I have reviewed the records at issue. In addition, I have had regard to:
• the judgments inRedmond & Anor v Commissioner for Environmental Information & Anor [2020 IECA 83 ] (Redmond),Electricity Supply Board v Commissioner for Environmental Information & Lar Mc Kenna [2020 IEHC 190 ](ESB), andRight to Know v Commissioner for Environmental Information & RTÉ [2021 IEHC 353 ] (RTÉ)
• the judgment of the Court of Appeal of England and Wales inDepartment for Business, Energy and Industrial Strategy v Information Commissioner [2017 EWCA Civ 844 ] (Henney) which is referenced in the decisions in Redmond, ESB, and RTÉ;
• the Guidance document provided by the Minister for the Environment, Community and Local Government on the implementation of the AIE Regulations (‘the Minister’s Guidance’);
• Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
• the 1998 United Nations Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (‘the Aarhus Convention’); and
• The Aarhus Convention – An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
15. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
16. As outlined above, during this review, DAA sought to invoke article 3(1) of the AIE Regulations to justify refusal of certain information, however no arguments or reasons were provided to the appellant at the original decision-making stages in support of this position. I would remind DAA that whether information is “environmental information” is one of the threshold issues to be considered when processing an AIE request. Further, 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 andBalz & Anor v An Bord Pleanála & Ors [2019] IESC 90).
17. 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.
18. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review DAA’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, the Commissioner will require the public authority to make available environmental information to the appellant.
19. DAA’s fresh decision-making on this AIE request involved consideration of a total of forty-seven (47) records. Not all of these records were identified to the appellant; however, all records have been taken into account for the purpose of this review.
20. It is clear from the comments of the Court of Appeal in Redmond, 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. 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 the decision.
21. Accordingly, in the circumstances of this case, I consider it appropriate to firstly determine which records may be considered outside of scope, before proceeding to consider any relevant exemptions in respect of the remaining records.
22. I have examined the forty-seven (47) records provided to this Office by DAA in the context of the appellant’s AIE request and appeal to this Office. Based on this examination, I consider it appropriate to remove twenty-one (21) records from the scope of this review, as follows:
(a) Record 1.2 was released to the appellant in DAA’s fresh decision on 20 June 2024.
(b) Record 7.1 was listed as refused in DAA’s fresh decision on 20 June 2024. However, in its focused submission to this Office, DAA confirmed that this record was released to the appellant in its original decision on 11 December 2023.
(c) Record 10.1 is a duplicate of Record 1.1 (which is examined below).
(d) Records 18, 19, 20, 20.1, 21, 22, 23, 23.1, 24, 25, 26, 27, 28, and 29 have been carefully considered by this Office (see paragraph 10. above). In view of the appellant’s confirmation that records related to invoices and payments may be excluded from scope, and having reviewed these fourteen (14) records, I am satisfied that they are outside of scope of this review.
(e) Records 30 and 31 consist of email correspondence dated 21 November 2023. On this basis, and having reviewed the records, I am satisfied that these records are outside of scope of this review, i.e. outside the timeframe covered by the appellant’s request.
(f) Record 32 was identified to the appellant in the schedule attached to DAA’s original decision on 11 December 2023. However, having reviewed the record concerned, I am satisfied that this record is also outside of scope of this review, i.e. outside the timeframe covered by the appellant’s request.
(g) Record 32.1 is an attachment contained in Record 32 and, on this basis, is also outside of scope of this review.
23. Having examined the remaining twenty-six (26) records within scope of this review, I am satisfied that this review is concerned with:
• whether nineteen (19) records, that is Records 2, 5, 6, 7, 8, 9, 10, 11, 11.1, 12, 13, 13.1, 13.2, 14, 15, 15.1, 16, 17 and 17.1, are “environmental information” within the meaning of the AIE Regulations; and, if so,
• whether DAA was justified in refusing release of twenty-six (26) records, that is Records 1, 1.1, 2, 3, 4, 5, 6, 7, 7.2, 7.3, 8, 9, 10, 11, 11.1, 12, 13, 13.1, 13.2, 14, 15, 15.1, 16, 17, 17.1 and 19.1, under article 9(1)(b) of the AIE Regulations.
24. It should be noted that, while I am required by article 12(5)(b) of the AIE Regulations to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the content of the record(s) and the extent to which I can describe certain matters in my analysis is limited.
25. The twenty-six (26) records concerned are as follows:
(a) Record 1: This record was refused by DAA based on article 9(1)(b) of the AIE Regulation. It is a communication between TPA and Dr. Basner concerning the consulting project, containing two attachments (being Records 1.1 and 1.2 below).
(b) Record 1.1: This record was refused by DAA based on article 9(1)(b) of the AIE Regulation. It is a First Party Response to Third Party Appeal (Ref. PL06F.314485) prepared by TPA.
(c) Record 2: In the schedule provided (to this Office), DAA states that Record 2: “Does not contain environmental information e.g. any noise information. TPA consultants are seeking a third party opinion but no technical information is provided or discussed.” In its focused submissions, the record is described as “a brief scheduling communication to arrange a meeting” and “an administrative communication seeking expert advice on environmental concerns rather than a document containing substantive environmental information”.
(d) Record 3: This record was refused by DAA based on article 9(1)(b) of the AIE Regulation. It is a communication between TPA and Dr. Basner concerning the consulting project.
(e) Record 4: This record was refused by DAA based on article 9(1)(b) of the AIE Regulation. It is a communication between TPA and Dr. Basner concerning the consulting project.
(f) Record 5: In the schedule provided, DAA describes Record 5 as follows: “Acknowledgement of receipt of earlier email ([Record 4]). No additional environmental information included.” In its focused submissions, the record is described as “a brief scheduling communication to arrange a meeting” and “a simple acknowledgment and confirmation of a future discussion rather than a document containing substantive environmental information”.
(g) Record 6: In the schedule provided, DAA describes Record 6 as follows: “Acknowledgement of receipt of earlier email ([Record 1]). No additional environmental information included.” In its focused submissions, the record is described as “a brief scheduling communication to arrange a meeting” and “a simple acknowledgment of receipt of additional material rather than a document containing substantive environmental information”.
(h) Record 7: In the schedule provided, DAA describes Record 7 as follows: “Email thread arranging meeting time in response to initial contact with Dr. Basner ([Record 2]) No additional environmental information included.” In its focused submissions, the record is described as “a brief scheduling communication to arrange a meeting” and “a simple scheduling communication to arrange a meeting rather than a document containing substantive environmental information”. It further states: “The detailed environmental information can be found in the attached [Records] (7.1, 7.2, 7.3), not in the email itself.”
(i) Record 7.2: This record was refused by DAA based on article 9(1)(b) of the AIE Regulation. It is a First Party Response to Third Party Appeal (Ref. PL06F.314485) prepared by TPA.
(j) Record 7.3: This record was refused by DAA based on article 9(1)(b) of the AIE Regulation. It is an Advice Request Note from TPA to Dr. Basner.
(k) Record 8: In the schedule provided, DAA describes Record 8 as follows: “Response from TPA with attachments and seeking to arrange meeting time. [Records] 2 and 7. Includes attachments ([Records] 7.1, 7.2 and 7.3). No additional environmental information included.” In its focused submissions, the record is described as “a brief scheduling communication to arrange a meeting. It is also stated that: “The email contains procedural communication requesting expert advice and arranging a meeting rather than a document containing substantive environmental information.”
(l) Record 9: In the schedule provided, DAA describes Record 9 as follows: “Response from Dr. Basner to [Record] 8. Does not contain additional environmental information.” Its focused submissions state: “The email mentions reviewing documents related to an appeal that involves noise and health impacts, but it does not contain specific information about these factors. It refers to [Records] (7.1, 7.2, 7.3) for detailed information. The email refers to a planning application and a third-party appeal, which are measures that could affect the environment. However, the email itself does not contain detailed information about these measures or their environmental impacts. It is primarily a procedural communication discussing consulting work and document review. The email does not include reports on the implementation of environmental legislation. The email mentions the consultant’s hourly rate and the need for a note outlining the expected time required, but it does not contain cost-benefit analyses or economic assumptions related to environmental measures. The email mentions health impacts but does not provide specific information on the state of human health and safety. It is a request for an expert review rather than a document containing detailed health information. The email is just a procedural communication discussing consulting work, document review, and scheduling rather than a document containing environmental information.”
(m) Record 10: In the schedule provided, DAA describes Record 10 as follows: “Response from TPA to [Record] 9 on meeting time. Includes attachment, [Record] 10.1. No additional environmental information included.” In its focused submissions, the record is described as “a brief scheduling communication to arrange a meeting”. It is also stated that: “The email is focused on logistical, administrative, and procedural aspects of the expert’s engagement and does not contain information that falls under the definition of environmental information as per the AIE Regulations. It is primarily concerned with confirming time details and attaching the correct document (Record 1.1) rather than discussing environmental data or impacts.”
(n) Record 11: In the schedule provided, DAA describes Record 11 as: “Follow up email on costs/terms. Does not contain environmental information. Response to [Record] 10.” In its focused submissions, DAA uses the same description as outlined for Record 9.
(o) Record 11.1: In the schedule provided, DAA describes Record 11.1 as follows: “Terms of engagement letter. Does not contain environmental information. Letter is marked "Privileged and Confidential.” Its focused submissions state: “The document is an engagement letter for an independent expert related to an appeal of a decision by Fingal County Council. While the letter itself outlines the terms of appointment, duties, confidentiality, and other administrative details, it does not explicitly contain environmental information.”
(p) Record 12: In the schedule provided, DAA describes Record 12 as follows: “Follow up Correspondence on terms/appointment, Does not contain environmental information.” In its focused submissions, the record is described as “a brief scheduling communication to arrange a meeting” and that it “focuses on logistical and procedural aspects of the expert’s engagement and the appeal process.”
(q) Record 13: In the schedule provided, DAA describes Record 13 as follows: “Follow up Correspondence on terms/appointment, Does not contain environmental information.” In its focused submissions, the record is described as “a brief scheduling communication to arrange a meeting”. It is also stated that: “This email primarily addresses administrative and procedural details related to the engagement of an expert. It does not explicitly contain environmental information as defined by the AIE Regulations. The focus is on the terms of the expert’s appointment and the fee proposal.”
(r) Record 13.1: In the schedule provided, DAA describes Record 13.1 as follows: “Fee proposal from Basner Research Consulting LLC, Does not contain env. Information.” Its focused submissions state: “The document contains a fee proposal and is focused on the terms and conditions of the expert’s engagement and does not contain information that falls under the definition of environmental information as per the AIE Regulations. It is primarily concerned with logistical, administrative, and procedural aspects rather than environmental data or impacts.”
(s) Record 13.2: In the schedule provided, DAA describes Record 13.2 as follows: “Expert appointment letter. Does not contain environmental information. Marked legally privileged.” Its focused submissions state: “The document is an engagement letter for an independent expert related to an appeal of a decision by Fingal County Council. While the letter itself outlines the terms of appointment, duties, confidentiality, and other administrative details, it does not contain environmental information.”
(t) Record 14: In the schedule provided, DAA describes Record 14 as follows: “Email with appointment letter attached. Does not contain environmental information.” Its focused submissions state: “The email is focused on logistical, administrative, and procedural aspects of the expert’s engagement and does not contain information that falls under the definition of environmental information as per the AIE Regulations. It is primarily concerned with confirming approvals and scheduling a meeting rather than discussing environmental data or impacts.”
(u) Record 15: In the schedule provided, DAA describes Record 15 as follows: “Email with signed appointment letter, does not contain environmental information.” In its focused submissions, DAA uses the same description as outlined for Record 14.
(v) Record 15.1: In the schedule provided and in it focused submissions, DAA uses the same descriptions for Record 15.1 as outlined for Record 13.2.
(w) Record 16: In the schedule provided, DAA describes Record 16 as follows: “Email correspondence on timeframe of meeting. Does not contain environmental information.” Its focused submissions state: “The email is focused on logistical, administrative, and procedural aspects of the expert’s engagement and does not contain information that falls under the definition of environmental information as per the AIE Regulations. It is primarily concerned with confirming approvals and scheduling a meeting rather than discussing environmental data or impacts.”
(x) Record 17: In the schedule provided, DAA describes Record 17 as follows: “Email from TPA to MB with attached signed fee proposal. Does not contain environmental information.” Its focused submissions state: “The email is focused on logistical, administrative, and procedural aspects of the expert’s engagement and does not contain information that falls under the definition of environmental information as per the AIE Regulations. It is primarily concerned with confirming the attachment of the signed fee proposal rather than discussing environmental data or impacts.”
(y) Record 17.1: In the schedule provided, DAA describes Record 17.1 as follows: “Fee proposal from Basner Research consulting LLC, does not contain environmental information.” Its focused submissions state: “The document contains a fee proposal and is focused on the terms and conditions of the expert’s engagement and does not contain information that falls under the definition of environmental information as per the AIE Regulations. It is primarily concerned with logistical, administrative, and procedural aspects rather than environmental data or impacts.”
(z) Record 19.1: This record was refused by DAA based on article 9(1)(b) of the AIE Regulation. It is a communication between Dr. Basner and TPA concerning the consulting project.
26. Article 7(1) of the AIE Regulations, which transposes article 3(1) of the AIE Directive, provides that:
“A public authority shall, notwithstanding any other statutory provision and subject only to these Regulations, make available to the applicant any environmental information, the subject of the request, held by, or for, the public authority.”
27. Article 3(1) of the AIE Regulations, in line with article 2(1) of the Directive, provides that "environmental information" means:
"any information in written, visual, aural, electronic or any other material form on:
(a) the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands, coastal and marine areas, biological diversity and its components, including genetically modified organisms and the interaction among these elements,
(b) factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment,
(c) measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements,
(d) reports on the implementation of environmental legislation,
(e) cost-benefit and other economic analyses and assumptions used within the framework of the measures and activities referred to in paragraph (c), and
(f) the state of human health and safety, including the contamination of the food chain, where relevant, conditions of human life, cultural sites and built structures inasmuch as they are, or may be, affected by the state of the elements of the environment referred to in paragraph (a) or, through those elements, by any of the matters referred to in paragraphs (b) and (c) ".
28. The Aarhus Guide, at page 50, notes the following:
“Article 2, paragraph 3 [of the Aarhus Convention], does not attempt to define “environmental information” in an exhaustive manner but rather breaks down its scope into three categories and within each category provides an illustrative list. These lists are likewise non exhaustive, and so they require a degree of interpretation on the part of authorities in a given case. The clear intention of the drafters, however, was to craft a definition that would be as broad in scope as possible, a fact that should be taken into account in its interpretation”.
29. According to national and EU case, while the concept of “environmental information” as defined in the AIE Directive is broad (Mecklenburg at paragraph 19), there must be more than a minimal connection with the environment (Glawischnig at paragraph 25). Information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond at paragraph 58; see also ESB at paragraph 43). However, a mere connection or link to the environment is not sufficient to bring information within the definition of environmental information. Otherwise, the scope of the definition would be unlimited in a manner that would be contrary to the judgments of the Court of Appeal and the CJEU. However, the right of access under the AIE Regulations is to information “on” one or more of the six categories at (a) to (f) of the definition.
30. In my view, paragraph (c) of the definition, which provides that “environmental information” means any information on measures (including administrative measures), such as policies, legislation, plans, programmes, environmental agreements, and activities affecting or likely to affect the elements and factors referred to in paragraphs (a) and (b) as well as measures or activities designed to protect those elements, is the most relevant to this review. Paragraph (c) has three requirements to be considered: (1) the identification of a measure or activity, (2) whether that measure or activity is affecting, likely to affect, or designed to protect the environment (i.e. has the requisite environmental effect) (3) whether the information sought is “on” the measure or activity.
31. Paragraph (c) requires the identification of a relevant measure or activity, which the information sought is “on”. Information may be “on” more than one measure or activity (Henney at paragraph 42). In identifying the relevant measure or activity, one may consider the wider context and is not strictly limited to the precise issue with which the information is concerned (ESB at paragraph 43). The list of examples of measures and activities given at paragraph (c) is not exhaustive, but it contains illustrative examples (Redmond at paragraph 55). The CJEU stated in Mecklenburg that the term ‘measure’ serves “merely to make it clear that the acts governed by the directive included all forms of administrative activity” (Mecklenburg at paragraph 20), and a similarly expansive approach should be taken to the term ‘activity’ (RTÉ at paragraph 19).
32. The submissions provided by DAA to this Office largely amount to a reiteration of the wording contained in paragraphs (a) – (f) of article 3(1) and do not provide any clear basis for its conclusion that the information does not meet the definition of “environmental information”.
33. I would caution against an excessively legalistic approach to the identification of the “correct” measure. In my view, the Irish and European courts have not indicated that there is one clear and precise answer to the identification of a measure. Rather, the courts have indicated that the focus should be on whether the measure affects or is likely to affect the environment. A measure or activity is “likely to affect” the elements and factors of the environment if there is a real and substantial possibility that it will affect the environment, whether directly or indirectly. Collins J, delivering judgment on behalf of the Court of Appeal in Redmond, noted that “something more than a remote or theoretical possibility is required (because that would sweep too widely and could result in the ‘general and unlimited right of access’ that Glawischnig indicates the AIE Directive was not intended to provide) but it is not necessary to establish the probability of a relevant environmental impact (because that would, in my opinion, sweep too narrowly and risk undermining the fundamental objectives of the AIE Directive) ” (paragraph 63).
34. According to DAA, the requested information is directly linked to the NRRA and also the NRRA is intrinsically linked to judicial review proceedings which DAA have initiated in respect of an enforcement notice issued by Fingal County Council in relation to flight movements. Notably, in its description of Record 9 above, DAA refers to the NRRA and a third-party appeal concerning same, as “measures that could affect the environment”. In my view, the relevant measure in this case is simply the NRRA.
35. The NRRA concerns an application to amend planning conditions to allow for changes to the nighttime operation of the North Runway at Dublin Airport, by increasing operational hours and shifting from a strict flight movement cap to an annual noise quota. In a DAA statement released on 17 July 2025, regarding the North Runway planning decision, it states: “The move to manage nighttime noise through an annual noise quota aligns with international best practice and will encourage further uptake of daa’s incentives for newer, lower emission and quieter aircraft.” (See https://www.dublinairport.com/latest-news/2025/07/17/daa-statement-regarding-north-runway-planning-decision )
36. I consider, based on the above, that the NRRA will self-evidently affect the environment and therefore is a measure affecting or likely to affect the elements of the environment contained in article 3(1)(a) and (b) of the AIE Regulations.
37. As “any information … on” a measure or activity affecting or likely to affect the environment is prima facie environmental information, the information at issue does not, in itself, have to affect or be likely to affect the environment in order to constitute information “on” such a measure (Redmond at paragraphs 57 and 59). The High Court outlined in its decision in ESB, relying on the English Court of Appeal decision in Henney, that information is “on” a measure if it is about, relates to or concerns the measure (see paragraph 41 of ESB, referring to paragraph 37 in Henney). The question as to whether information is “on” a measure is fact and context specific. This question is to be considered by reference to the Directive and Aarhus Convention. According to Henney, the recitals to both the Directive and Convention “give an indication of how the very broad language of the text of the provisions may have to be assessed and provide a framework for determining the question of whether in a particular case information can properly be described as "on" a given measure” (at paragraph 48). Importantly, while Henney uses the terms “critical”, “fundamental” or “integral”, it did so to describe the relationship between the communications and data component of the smart meter plan and the overall smart meter plan. There was a dispute in that case between the parties as to what was the correct measure. The Court did not use these terms to say that for information to be on a measure it had to be critical, fundamental or integral to that measure.
38. The thrust of DAA’s arguments in respect of the nineteen (19) identified records is that they do not plainly or “explicitly” contain “detailed, “specific” or “technical” environmental information and, as such, they do not meet the criteria for “environmental information” under article 3(1) of the AIE Regulations. DAA submits that “[the records do not] provide information on the state of air, water, soil, land, landscape, or natural sites. [The records do not] contain specific information about factors such as substances, energy, noise, radiation, or waste that affect the environment. [The records do] not include detailed information about measures, policies, or activities that have a direct impact on environmental elements or factors… [The records do not] include reports on the implementation of environmental legislation. [The records do not] contain cost-benefit analyses or economic assumptions related to environmental measures. [The records do not] provide specific information on the state of human health and safety, conditions of human life, cultural sites, or built structures in relation to environmental elements. (Emphasis added)
39. However, as previously noted, information does not have to be intrinsically environmental to fall within the scope of the definition (Redmond, paragraph 58, see also ESB, paragraph 43). In this regard I note the purposive test as articulated in Henney. The Court of Appeal in Redmond noted that the Court of Appeal of England and Wales in Henney suggests that, in determining whether information is “on” the relevant measure or activity, it may be relevant to consider the purpose of the information such as why it was produced, how important it is to that purpose, how it is to be used, and whether access to it advances the purposes of the Aarhus Convention and AIE Directive (see Redmond at paragraph 99). Information that does not advance the purposes of the Aarhus Convention and AIE Directive may not be “on” the relevant measure or activity (Redmond at paragraph 99). The test set out in Henney was also explicitly endorsed by the High Court in the RTÉ case (see paragraph 52).
40. As evident from the descriptions proffered by DAA in relation to the records withheld, in general they consist of communications between TPA (on behalf of DAA) and Dr. Basner concerning the consulting project involved, including administrative arrangements and terms of engagement. From my examination of the records concerned, the purpose of this consulting project was clearly to assist TPA/DAA in addressing third party concerns relating to the NRRA. I am therefore satisfied that the information concerning the engagement of Dr. Basner is not at such a remove from the NRRA to render it too “remote”. As such, I am satisfied that the nineteen (19) records at issue comprise information “on” a “measure or activity” within the meaning of article 3(1)(c) of the Regulations and should be considered “environmental information” within the scope of the AIE Regulations. The information is clearly about the measure, relates to it and concerns it.
41. As I have found that the information sought is environmental information, I will go on to consider whether the refusal of the twenty-six (26) records within scope of this appeal is justified under article 9(1)(b) of the AIE Regulations.
42. 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.
43. 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. 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.
44. The judgment of the High Court inRight 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”. This view aligns with the decision of the Court of Justice of the EU in C-619/19Land 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.
45. In its submissions to this Office dated 16 October 2024, DAA argues that the withheld information is “directly “and “inextricably” linked to the NRRA and the ongoing judicial review proceedings and that disclosure would adversely affect the course of justice. It submits that the records “comprise both daa’s response to a third-party appeal and interactions with advisors in order to draft daa’s appeal documents”. DAA argues that the records “were used in the preparation of daa’s case for this ABP appeal and are therefore also relevant to daa’s position in the JR Proceedings.” It submits: “Given that part of the NRRA deals with the introduction of a nighttime noise quota and the JR Proceedings relate to the nighttime movements at the airport, the information requested is relevant to the NRRA which is currently subject to appeal and the active JR Proceedings. We note that the full ABP planning file will become available for public viewing on determination of that application.”
46. I am not satisfied that DAA has explained how release of the actual records at issue could adversely affect the course of justice or undermine its position in either of the above matters. The fact that information may relate to ongoing legal or statutory proceedings does not, in and of itself, establish that its disclosure would adversely affect the course of justice; otherwise, the AIE Regulations would provide for a class-based exemption for such information, which they do not. DAA’s submissions did not explain how the specific information concerned is relevant to the proceedings identified. Furthermore, DAA has not explained in any detail that an adverse effect is reasonably foreseeable within the terms of the exemption. Without this information it is not possible for me to find that the information sought is relevant to the proceedings, or to find that the course of justice would be adversely affected by the release of the requested information.
47. As outlined above, it can be noted that the NRRA was decided upon by An Coimisiún Pleanála in July 2025 and as indicated by DAA, the planning file is now publicly available. In this regard, I note that two (2) of the twenty-six (26) records at issue are now publicly available, i.e. Record 1.1 and Record 7.2 . It is the understanding of this Office, at the time of this decision, that the Judicial Review proceedings referred to by DAA, which concern its challenge to Fingal County Council’s enforcement notice to restrict night flights at Dublin Airport, are ongoing but stand adjourned generally before the courts. (See 2023 916 JR )
48. I have carefully examined the withheld information in this case, which as outlined above consists of communications between TPA (on behalf of DAA) and Dr. Basner concerning an agreed scope of work, conducted in August 2023. The communications detail project scope, supporting documents and administrative arrangements including fees. I note, in particular, that Records 11.1, 13.2 and 15.1 which consist of versions of a ‘Letter of Engagement as an Independent Expert’ respectively, are marked “Legally Privileged & Confidential”. However, DAA did not make any specific arguments in support of its position that this information attracts legal privilege, and I take the view that the onus is on the party asserting privilege to justify any such claim.
49. Although DAA has pointed to a statutory planning process (that was ongoing at the time of the AIE request) and purportedly related judicial review proceedings, it is not clear how either of these matters would be affected by disclosure of the specific records concerned. Overall, in the circumstances of this case and having examined the content of the records at issue, I find that article 9(1)(b) does not apply to the information.
50. Even in the event that article 9(1)(b) could be applied to the information in this case, DAA’s submission with respect to the public interest balancing test as required by article 10(3) and 10(4) of the AIE Regulations is limited to the following statement: “An appellant in a planning appeal is entitled to make their case without risk that the preparatory documents would need to be released mid appeal.” Article 10(3) requires balancing public interest in disclosure of information against public interest in refusal, while article 10(4) mandates a restrictive interpretation of refusal grounds, prioritising disclosure. A public authority is required to perform an individual and adequate public interest test and this generic statement by DAA does not demonstrate an appropriate application of the provisions of article 10 of the AIE Regulations.
51. Overall, in the circumstances of this case and having examined the content of the records at issue, I find that article 9(1)(b) does not apply to the twenty-six (26) records within scope of this appeal. Accordingly, I direct release of the information.
52. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information I annul DAA’s decision under article 9(1)(b) of the Regulations and direct release of the information within scope of this appeal.
53. 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