A Group and Department of Environment, Climate and Communications
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-139330-P0W2D2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-139330-P0W2D2
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to the information requested under articles 3(1), 8(a)(i), 8(a)(iv), 9(1)(c), 9(2)(c) and 9(2)(d) of the AIE Regulations.
1. On 13 January 2023 the appellant made seven AIE requests to the Department of the Environment, Climate and Communications (the Department) which asked for the same information with respect to seven MAC applications:
“All information received by the Department on or after the 25 April 2022, in respect of the MAC application for what the Department refer to as MAC XXX as published on 23 Dec 2022 here.
The information requested should be interpreted comprehensively and such information is not limited to but should include:
• The application documents.
• All materials submitted with the application.
• All information shared and communications between the Department and the applicant relating to the application, including and not limited to in respect of the intention to grant.
Information includes and is not limited to:
• Details of all calls and meetings, including un-minuted meetings, and is to include details of attendees, durations, location and agenda, matters discussed, briefing notes, notes and instructions given to Departmental or MAC applicant representatives, items reviewed and/or circulated, notes taken
• All items attached to paper files, paper files, documents, “post-it” type notes, notes etc.
• All items attached to electronic records or files and emails, including file attachments, forwarded documents, associated replies or originating queries, database records and files referred to, and the content of URLs referenced if not publicly available”.
2. These requests were treated as one AIE request by the Department (AIE20231-AIE20237) and on 8 February 2023 the appellant was notified of the Department’s intention to rely on article 7(2)(b) of the AIE Regulations in applying a one-month extension to the response, due to the “complexity and volume” of the requests.
3. On 10 March 2023, the Department issued its original decision, which stated that it had identified 402“potential” records which“may or may not fall within the scope of these requests, given the broadly worded nature of the AIE request” and provided seven schedules which listed the records.
4. Of these records, the Department noted that 104 were granted in full or part, these comprised of:
• “Records which contain the comprehensive information and detailed submissions provided by the seven Phase One projects as part of their MAC application to the Minister and on which the Minister’s decision to grant each of the MACs were based,
• records which contain information related to the Minister’s “minded to grant” decision of the seven relevant projects, including the detailed submissions sent to the Minister which outline the background, legislative basis, assessment outcomes and recommendation regarding the issuance of a “minded to grant” decision to each of the seven relevant projects,
• all formal letters issued from DECC to each of the Phase One projects in respect of the Minister’s “minded to grant” decision,
• records which contain information related to the Minister’s final decision to grant MACs to the seven relevant projects, including the detailed final Submissions sent to the Minister which outline the background, legislative basis, assessment outcomes and recommendation regarding the issuance of a final MAC to each of the seven relevant projects,
• all formal letters issued from DECC to each of the seven Phase One projects in respect of the Minister’s decision to grant a MAC to each of the seven Phase One projects.”
5. The Department relied on articles 8(a)(i), 8(a)(iv), 9(1)(c), 9(2)(c) and 9(2)(d) and with respect to redactions made to the part-granted records, stating:
“Many of the records associated with the above have been part-granted on the basis that the names, email addresses and contact details of any third parties have been redacted as per Article 8(a)(i) of the AIE Regulations. In evaluating the release of these personal details against the public interest test, it is my view that no public interest could be served by publicising the personal information of any third parties.
The detailed information provided to the Department by the seven Phase One projects as part of their MAC applications contains a high volume of commercially sensitive information.
Requests for information may be refused in circumstances where the release of information could be detrimental to the commercial interests of an individual or company and the protection of this information has been provided for in national or Community law to protect a legitimate economic interest. _
All of the Phase One projects were given an opportunity, as third parties, to review this information and comment on the elements of the applications which, in their view, should not be released for reasons of commercial interest or otherwise.
As decision maker I have reviewed the feedback received by the Phase One projects and weighed the proposed redactions against the public interest test. In my view the release of commercially or industrially sensitive information which could reasonably be expected to undermine the economic interests of a third party does not serve a wider public interest and the MAC applications of the Phase One projects contain a number of redactions made as per Article 9(1)(c) of the AIE Regulations - commercial or industrial confidentiality.
Additionally, some elements of the MAC applications from Phase One projects have been redacted to remove personal information or details of third parties, as per Article 8(a)(i) of the AIE Regulations. This is particularly true of the CVs of individuals submitted as part of the technical MAC applications. All of the Phase One projects were given the opportunity to consent to the release of this personal information and I have weighed the public interest test against the proposed redaction of this personal third party information. I do not feel that a public interest could be served by releasing this information.
In reviewing both the “minded to” and final MAC Submissions to the Minister, a number of redactions have been made to records, removing certain information which is commercially or industrially sensitive and which could reasonably be expected to undermine the economic interests of the applicant. In these instances, Article 9(1)(c) of the AIE Regulations apply, and the Phase One projects have been informed of these redactions as a relevant third party. Additionally, some elements of these Submissions contain information which is legally privileged regarding drafting considerations of the Phase One MACs. These sections have been redacted under Article 8(a)(iv) - the confidentiality of the proceedings of public authorities, and Article 9(2)(d) concerning internal communications of public authorities.
Having run the public interest test on these redactions the interest served by refusing include the public interest served by maintaining the legal privilege of the relationship between DECC and the Chief State Solicitors’ Office, and the public interest served by not undermining the commercial or economic interest of a third party.”
6.The Department cited that it was refusing access to 298 records identified as “potentially” falling within the scope of the request, relying on articles 8(a)(iv), 9(1)(c), 9(2)(c) and 9(2)(d) in its contentions. While it did not specially note article 3(1), it cited refusal to release a high number of records across the schedules because it deemed it not to be environmental in nature. The Department note that the decision letter contains “broadly” the applicable sections of the AIE Regulations which apply to the records as “supplementary information” to go alongside the record specific application of the AIE Regulations on each of the seven schedules. Further detail below.
7. “Information which is already publicly available:
The Maritime Area Planning (MAP) Act, 2021, specifies that once a final decision is made to grant or not to grant a Maritime Area Consent (MAC) and the applicant has been notified in writing, a notice will be published on the Department’s website as soon as practicable thereafter. The Minister has met these statutory obligations, with the published information available on gov.ie as of 23 December 2022. This information includes the final MACs as granted, spatial representations of all Phase One projects, the MAC levy framework, and other important information on Phase One MACs. This web page also contains the detailed MAC Application Guidance. This Guidance, including the Financial Capability Guidance and Technical Capability Guidance, contain templates for all of the information applicants were required to submit for assessment, in order to satisfy the required standard to be awarded a Maritime Area Consent.
8. Information which is commercially or industrially confidential – 9(1)(c)
Requests for information may be refused in circumstances where the release of information could be detrimental to the commercial interests of an individual or company and the protection of this information has been provided for in national or Community law to protect a legitimate economic interest. A number of records across the seven Phase One MACs have been refused on the basis that I, as decision maker, am satisfied that the release of these records would threaten the commercial interests of the market operators to which the records relate. As seen in the schedules, this information includes financial and confidential organisational information related to the Phase One developers, which operate in a liberalised market. In accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of these records. I have determined that the public interest would not be served by disclosing the information contained in these records on the basis that the final outcomes and recommendations of the MAC assessment of the Phase One projects are being released within the final Submissions to the Minister, and that no further public interest could be served by releasing commercially sensitive information which could harm the future position of a market operator.
9. Material in the course of completion – Article 9(2)(c)
Public authorities are not obliged to make available material that is incomplete or in preliminary or other draft form. As noted above, DECC has published certain information on its website related to the Phase One MACs. As will be seen in the seven schedules, there are certain records which have been refused on the basis that they relate to draft or earlier versions/iterations of the final MACs, which are publicly available. These records include drafts of MAC terms and conditions, mapping data or shapefiles which informed the final MAC spatial representations as published, etc. In accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of these records. I have determined that the public interest would not be served by disclosing the information you request on the basis that the final MACs and spatial representations of the Phase One projects are publicly available, and that the basis on which MAC decisions were made by the Minister are being released under this request. No further public interest could be served by releasing a high volume of preliminary, draft or incomplete material and the public interest is better served by refusing this information as per Article 9(2)(c) concerning material in the course of completion, or unfinished documents.
10. Confidentiality of the proceedings of public authorities and Internal communications of public authorities – 8(a)(iv) and 9(2)(d)
In line with the Directive, where the confidentiality of the proceedings of public authorities is otherwise protected by law, information relating to such proceedings may not be made available under the AIE Regulations. This includes information exempt from disclosure under the FoI Acts. In effect, this provision means that if information about the proceedings of public bodies would, were an FoI request to be made seeking discovery of it, be capable of being protected under the FoI Acts, a public authority must not release this information under the AIE Regulations. Additionally, Article 9.2(d) provides that information included in the internal communications of a public authority may be protected from release. This could include internal minutes or other communications, between officials or different public authorities, or between officials and Ministers. As indicated in the seven schedules, certain records have been refused on the basis that they are legally privileged, particularly in respect of records between DECC and its legal advisors in the Chief State Solicitors’ Office (CSSO). The release of this legally privileged information could serve to undermine the future negotiating position of the State, in so far as it relates to the long-term protection of the State resource, certain drafting considerations related to the Phase One MACs, etc. Additionally, a small volume of records pertain to ongoing discussions between the State and certain Phase One developers regarding elements of their project plans. To release these records could reasonably be expected to have an adverse impact on the position of the State in these bi-lateral discussions. In accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of these records. I have determined that the public interest would not be served by disclosing the information you request on the basis that the release of these records could reasonably be expected to have a serious, adverse effect on the future negotiating position of the State and the financial interests of the State. The public interest in granting these records is outweighed by the public interest in refusing them.”
11. On 8 April 2023, the appellant requested an internal review of the decision, accompanied by a 15-page submission to support their request. Firstly, the appellant but forth their contention that the Schedule of Records does not provide an adequate description of each record, citing:
“(a) There is insufficient detail of what the Record contains.
(b) Where an email or letter is the subject of the Record, details should be given as to the title/subject of the correspondence and to / from whom it is sent / received.
(c) We request that each record be relisted/ rescheduled with as much detail as possible in order to clarify these issues.
(d) Where legal privilege is claimed, the schedule does not specify the named legal person on which this exemption is based.
(e) Where reference is made to ‘shapefiles’, details must be given as to what the shapefiles contain.”
12. Secondly, the appellant stated their challenge at the“refusal and redaction of Records with reference to various Articles of the AIE Regulations and Directive 2003/4/EC” providing extensive supporting documentation to support their contention, which highlights articles relied upon by the Department, the appellant’s opposing view of same, with reference to case law and previous OCEI decisions.
13. On 10 May 2023 the Department issued its internal review decision varying the original decision and providing a new schedule, stating:
“The decision made by the initial decision-maker should be varied as follows:
• AIE20231: release records 24, 25, 43, 44, 45 and 56 in full, and release record 27 in redacted form.
• AIE20232: release record 7 in full and release record 25 in redacted form
• AIE20235: release record 30 in full
• AIE20236: release record 32 in full and release record 51 in redacted form
• AIE20237: release record 26 in full
In reviewing all the records involved in this request, I have also varied the grounds for some of the records that were either refused or part-granted. This is indicated in the schedule of records.
With respect to commercially sensitive records redacted under Article 9(1)(c) of the AIE Regulations, I have determined that the release of such records is not in the public interest. The detrimental affect that disclosure of the information would have includes but is not necessarily limited to material financial loss or damage to the companies involved by making available information on developers’ projects; and material financial loss or damage by revealing assumptions about project costs to competitors. Furthermore, making available information which could give competitors in a current or future ORESS auction or route-to-market process an unfair competitive advantage. In that regard, I am of the view that the public interest does not warrant the release of the information.
With respect to personal information redacted under Article 8(a)(i) of the AIE Regulations, I affirm the view of the original decision-maker that there is no public interest in the release of confidential personal information. This includes names and contact details, but also CVs and qualifications. As noted in the original decision, the Phase One projects concerned were given the opportunity to consent to the release of information, and I see no public interest in releasing that information in the absence of such consent.
In terms of material redacted or withheld under Article 9(2)(c) of the AIE Regulations, I consider that the public interest is not served in releasing records to which this article applies. These records relate to unfinished drafts, incomplete information, mapping data and shapefiles (which are data formats for Geographic Information Systems). I believe that the public interest is not served as the final Maritime Area Consents granted are published on gov.ie. These contain the final versions of the terms and conditions and locations of MACs which are currently in force.
With respect to records redacted or withheld in relation to legal privilege, I have considered the public interest, and in my view it does not warrant the release of the records. Disclosing confidential material of this category could damage the interests of the parties included in or referred to in the records and could harm future negotiations of the State in this area.”
14. The appellant appealed to this Office on 9 June 2023.
15. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Department of Environment, Climate and Communications. 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’).
What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
16. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the public authority’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant.
17. The scope of this review concerns whether the Department was justified in refusing access to the records it identified within the scope of the request but refused to release/refuse to release in full, under articles 3(1), 8(a)(i), 8(a)(iv), 9(1)(c), 9(2)(c) and 9(2)(d) of the AIE Regulations.
18. As referenced in paragraph 11, the appellant provided a detailed submission to support their internal review request. This submission outlined the appellant’s contention that the Department had incorrectly applied the articles noted, including case law and previous OCEI decisions. Further to this, the appellant also contended their view that the Department had incorrectly commented that the information requested did not concern emissions, stating:
“We take issue with the conclusion of the decision-maker that our request does not relate to information on emissions. 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. The EU Guidance on Offshore Wind Energy Developments and Nature Conservation, 2021, describes the following ORE activities as relating to emissions. ○ noise and vibration ○ dredging, drilling, grouting and electromagnetic fields ○ harmful visual stimuli ○ seismic surveys ○ side scan sonars ○ sediment plumes In so much as the award of a MAC is for the purposes of allowing the continuation of these emission related activities (pre the establishment of MARA), it is clear that the MAC award cannot be said to be unrelated to emissions With regard to the awarding of MACs, i.e. occupation of a site, we wish to draw particular attention to Table 5.2., referencing emissions, and where it is stated with regard to Macro-siting (avoidance): ‘This relates to the spatial planning of wind energy developments and ensures their appropriate siting from a conservation perspective. Avoiding ecologically sensitive areas (supported by, for example by wildlife sensitivity mapping) is a key avoidance measure.’”
19. The appellant further contended that the Department had not released any records relating to “on-going communications” between it and the MAC applicants, stating:
“We note that no Records detailing ongoing communications between the Department and the MAC applicants were included in the Records released. We draw your attention to the text of the AIE request, presented below. The information requested should be interpreted comprehensively and such information is not limited to but should include:
• The application documents
• All materials submitted with the application
• All information shared and communications between the Department and the applicant relating to the application, including and not limited to in respect of the intention to grant.
Information includes and is not limited to:
• Details of all calls and meetings, including un-minuted meetings, and is to include details of attendees, durations, location and agenda, matters discussed, briefing notes, notes and instructions given to Departmental or MAC applicant representatives, items reviewed and/or circulated, notes taken
• All items attached to paper files, paper files, documents, “post-it” type notes, notes etc.
• All items attached to electronic records or files and emails, including file attachments, forwarded documents, associated replies or originating queries, database records and files referred to, and the content of URLs referenced if not publicly available.
We now request Missing Records of all communications between DECC and the developers, for example, Mr Paul Kelly, RWE, Ms Gillian Moore, RWE, Ms Nicola McLoughlin, Codling Wind Park, Mr Nick Emery, Mr Paddy Teahon, Arno ver Beek, Scott Sutherland, Thomas Gellert, Codling Wind Park, and all other representatives of the wind energy development companies”.
20. The appellant also provided an additional submission to this Office, stating:
“This appeal relates to Records released in relation to the awarding of 45-year occupation rights (MACs) on State-owned foreshore granted on the sole authority of one government Minister. The public interest is served by providing to concerned citizens records explaining the decision to grant such extensive occupation rights for such a prolonged periods of time. On this basis, and on the evidence already presented in my application for Internal Review, I believe that further consideration should be given to our request for records in their unredacted form based on, but not exclusively, the supporting documentation submitted in support of our request for Internal Review.
For example, I see no reason to withhold data such as mapping data and shapefiles that simply describe State-0wned foreshore and contend that releasing such data is in the public interest. Furthermore, given that each site is distinct from the others, there would be no competitive advantage or disadvantage to the sharing of such information. Supporting documentation submitted with our request for Internal Review already made the point that the description of Records as simply 'shapefiles' does not provide adequate information as to the content of what the Record describes. In addition, it is also outlined in this document that the public should be given the widest possible access to environmental information. We contend that this is particularly pertinent when the information relates to State-owned public assets. Neither is it true, as stated in the Internal Review decision, that the final MAC with map attached is in any way a substitute for the shapefile data. The shapefiles give basic environmental/mapping information as well as meta data. Therefore, these data, in shapefile format, are useful and applicable in enabling the public to understand the Minister's reasoning in granting MACs. The Open Data and Re-use of public sector information Directive 2019-1024 requires data in suitable format to be provided, including geospatial formats.”
21. In its submission to this Office, the Department outlined its position in refusing to release/refuse to release in full, the information identified as coming within the scope of the request, relying on articles 8(a)(i), 9(1)(c), 9(2)(c) and 9(2)(d) of the AIE Regulations.
22. With respect to article 8(a)(i) the Department’s submission contends the same arguments it set out in the internal review decision, noted in paragraph 13.
23. With respect to article 9(1)(c) the Department’s submission contends the same arguments set out in its internal review decision, noted in paragraph 8.
24. With respect to 9(2)(c) the Department’s submission contends the same arguments set out in its internal review decision, noted in paragraph 13 regarding documents in the course of completion, in additional to the below regarding mapping data and shapefiles:
“With specific respect to mapping data and shapefiles, in its application for an appeal the appellant has claimed that “…the description of Records as simply 'shapefiles' does not provide adequate information as to the content of what the Record describes. In addition, it is also outlined in this document that the public should be given the widest possible access to environmental information.” This could cause confusion and inadvertently imply that the shapefiles contain environmental information. Again, there is no environmental assessment as part of the MAC. The shapefiles listed in the schedules relate to the geographic coordinates of each Phase One project, the final versions of which are openly published on Gov.ie along with the full granted MACs and spatial depictions of each Phase One project. The Public Authority does not see how releasing into the public domain older, draft or incomplete versions of maps or mapping data could serve any public interest other than to introduce an element of confusion around the final granted MACs.
Additionally, the Public Authority wishes to make it absolutely clear that selecting the geographic locations of Phase One projects was not part of the MAC assessment process.
The location of Phase One projects pre-dates the MAC regime and was determined by the previous Foreshore regime, which is under the aegis of the Department of Housing, Local Government and Heritage. As stated on the publicly available MAC Application Guidance, “…all Relevant Projects must be within the coordinates of the original foreshore lease application”. The purpose in DECC receiving mapping data was to cross-check and verify that each project was only applying for a MAC within the geographic footprint as previously determined under the Foreshore regime. Questions about area selection should be directed to the relevant Department.”
25. With respect to 9(2)d) the Department reiterated the arguments it outlined in its original decision, noted in paragraph 5.
26. While it does not specifically invoke 8(a)(iv), as it did in its original decision, the Department details a section on “legal privilege” and appears to imply the implications of 8(a)(iv), stating:
“In line with the Directive, where the confidentiality of the proceedings of public authorities is otherwise protected by law, information relating to such proceedings may not be made available under the AIE Regulations. This includes information exempt from disclosure under the FoI Acts. In effect, this provision means that if information about the proceedings of public bodies would, were an FoI request to be made seeking discovery of it, be capable of being protected under the FoI Acts, a public authority must not release this information under the AIE Regulations.”
27. In its submission the Department also stated:
“In addition to the aforementioned grounds under the AIE Regulations on which these exemptions are based, consideration should also be given to Chapter 11 of the Maritime Area Planning Act 2021. Section 104 specifically deals with the keeping of records and disclosure of certain information by MARA (or the Minister for the Environment for Phase One projects only). Section 104 specifies, intern alia, that “…MARA shall ensure that the publication…of specified data is done in such a manner that commercially sensitive information is not disclosed”. “Commercially sensitive information” is defined in the same section as:
(a) financial, commercial, scientific, technical or other information the disclosure of which could reasonably be expected to result in a material financial loss or gain to the person to whom it relates, or could prejudice the competitive position of that person in the conduct of his or her business or otherwise in his or her occupation, or
(b) information the disclosure of which could prejudice the conduct or outcome of contractual or other negotiations of the person to whom it relates”.
28. The Department further noted that it had consulted with third parties-the seven phase one projects-and“took into account their observations” when making its decision.
29. Given the volume of records at issue within this appeal, I want to first comment on the Department’s observation in the original decision which states it has identified 402 records“which may or may not fall within the scope of these requests, given the broadly worded nature of the AIE requests” . I remind the Department that article 3 of the Directive (European Directive 2003/4/EC) allows a public authority to ask an appellant to re-formulate a less general and more specific request and, shall assist the appellant in doing so.
Given that the Department cannot be confident that all of the records identified do in fact fall within the scope of the request, I cannot be satisfied that the Department has fully reviewed each of the records in question while processing the request.
30. While the Department does not specifically refer to article 3(1) in its decisions or submission, its contention that certain records have been refused and/or redacted because“Such information is not environmental in nature” implies reliance on this article.
31. Article 3(1) of the AIE Regulations is the relevant provision to consider where the issue is whether information is“environmental information” . In line with article 2(1) of the AIE Directive, article 3(1) of the AIE Regulations 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)”.
32. 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. According to national and EU case law on the definition of “environmental information”, 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).
33. 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.
34. The Department have contended that information is“not environmental in nature” throughout the schedule, in many cases simultaneously invoking other articles in conjunction to support their view regarding the refusal or part-refusal of information. It has not provided further information on the records in question beyond a description of the document, in most cases noting“financial information- non environmental in nature” . To take a sample for example, on the schedule AIE20237, it has contended that 36 out of 71 records are not environmental in nature, without providing further detail.
35. That information is financial in nature does not preclude it from being environmental information. In particular, article 3(1)(c) provides that environmental information includes any information on activities and measures“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” . I note that the records here concern proposals to develop offshore windfarms, which I consider to be clearly activities which would affect or be likely to affect the environment. I would therefore consider it likely that the vast majority, if not all, of the information in the relevant records comes within the definition of environmental information.
36. While it would have been open to me to examine each record individually and make a finding as to whether the information sought does come within that definition, for the reasons I will set out below I consider it more appropriate for the Department to carry out a new internal review process in respect of this appeal.
37. 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.
38. When relying on article 8(a)(i) of the AIE Regulations a public authority must show that the information at issue is personal information relating to a natural person, who has not consented to its disclosure; that the confidentiality of that personal information is provided by law; and that the disclosure of the information at issue would adversely affect that confidentiality. 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.
39. Article 8(a)(iv) 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 the proceedings of public authorities, where such confidentiality is otherwise protected by law (including the Freedom of Information Acts 1997 and 2003 with respect to exempt records within the meaning of those Acts). This provision seeks to transpose Article 4(2)(a) of the AIE Directive, which in turn is based on Article 4(4)(a) of the Aarhus Convention.
40. When relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect that confidentiality. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
41. 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. Article 9(1)(c) of the AIE Regulations must also be read alongside article 10 of the AIE Regulations.
42. 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. A mere assertion of an expectation of harm is not sufficient.
43. Article 9(2)(c) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns material in the course of completion, or unfinished documents or data. This provision transposes Article 4(1)(d) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention. This exemption is not harm-based. It is not necessary for the public authority to show that there is any adverse effect in respect of the release of the information at issue to engage the exception, just that the information concerns material in the course of completion, or unfinished documents or data, although, as noted below, there is still a requirement to then consider the public interest.
44. Article 9(2)(d) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request concerns internal communications of public authorities, taking into account the public interest served by the disclosure. This provision transposes Article 4(1)(e) of the AIE Directive, which in turn is based on part of Article 4(3)(c) of the Aarhus Convention.
45. When relying on article 9(2)(d), the public authority should show that the information at issue is an “internal communication” such that it falls within the scope of the exception. It is then for the public authority to weigh the public interest served by disclosure against the interest served by the refusal, as is required by the exception itself and articles 10(3) and (4) of the AIE Regulations.
46. Articles 8(a)(i), 8(a)(iv), 9(1)(c), 9(2)(c) and 9(2)(d) must all be read alongside article 10 of the AIE Regulations, part of which transposes the second subparagraph of Article 4(2) of the AIE Directive. 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 articles 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.
47. Paragraphs 37-46 above provide for a brief outline of the five AIE articles the Department relied upon in refusing 285 records and granting/part-granting 117 (total at internal review stage). The obligations on behalf of the Department in providing reasons at each stage of the decision-making process with respect to the exemptions it wishes to invoke in refusing to release information under articles 8 and 9 of the AIE regime, alongside its consideration of the public interest balancing test outlined in article 10, are well documented in decisions published by this Office.
48. Articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stage, consistent with Article 4(5) of the AIE Directive. It is widely accepted that the duty to give reasons arises not only by virtue of the AIE Regulations and Directive but that it is 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).
49. As noted in paragraphs 29-30 the Department have stated that the 402 identified records ‘may or may not’ come under the scope of the request and as such, I cannot be assured that a comprehensive assessment of the records, obliged under the AIE regime, has been completed. I have also considered the detail provided by the Department in the original and internal review decisions and in its submissions to this Office. I am not satisfied that the Department has provided adequate reasons in support of its decision, such that I can be satisfied that the exemptions referred to apply. I have set out below some of the issues that arises in the reasons given by the Departments:
a. In relation to article 8(a)(i), the Department have stated that the disclosure of the information sought would be in breach of the GDPR. As set out in recent decisions of this Office, this may not be the case where the requestor has established a legitimate interest in the release of the information sought, and it is for the Department to carry out a balancing exercise between the rights of the data subject and the legitimate interests of the requestor. I am not satisfied that this question has been correctly considered in this case by the Department.
b. The Department has referred to some documents being legally privileged but has not set out how this relates to the exemptions contained in the AIE regulations.
c. The Department has not considered the extent to which article 10(5) may apply to the withheld information.
d. As noted in previous decisions relating to the Department, the Department have not correctly considered the public interest balancing test, stating in the internal review decision, “I have weighed the public interest served by disclosure against the interest served by refusal of your request. I have determined that the public interest would not be served by disclosing the information you request.” The requirement in article 10(3) is that “The public authority shall consider each request on an individual basis and weigh the public interest served by disclosure against the interest served by refusal”. This is not the same as considering whether the public interest would be served by disclosure, and I consider this to be an important aspect in correctly carrying out the public interest balancing test.
e. Finally, the appellant in her internal review request contends that there should be additional records within the scope of the request, and the Department has not addressed this question.
50. Further, I note that the Department has not addressed, in its internal review decision, the appellant’s contentions with respect to emissions, outlined in their request for an internal review, cited in paragraph 18. Despite the appellant’s specific and detailed contentions with respect to this element of the appeal, the Department has repeated the sentence it had first published in the original decision into the internal review, without providing further information or argument.
51. Article 10(1) of the AIE Regulations provides that, notwithstanding articles 8 and 9 (1)(c), a request for environmental information shall not be refused where the request relates to information on emissions into the environment. This provision seeks to transpose article 4(2) of the Directive which similarly provides that certain grounds for refusal may not be applied“where the request relates to information on emissions into the environment”.
52. Therefore, if article 10(1) of the AIE Regulations is found to apply to the appellant’s request, articles 8 and 9, which the Department has relied upon in its decisions and submissions, may not be relied on as grounds for refusal of the information.
53. The appellant contends that emissions are a feature of the request, referring to the EU Guidance on Offshore Wind Energy Developments and Nature Conservation, 2021, in its description of emission related activities which the appellant argues relates to the activities of which a MAC would be awarded.
54. The CJEU has assessed the meaning of the phrase “information on emissions into the environment” in its decision in C-442/14 Bayer CropScience and Stichting De Bijenstichting v College voor de toelating van gewasbeschermingsmiddelen en biociden (Bayer). The Bayer case involved a request for information relating to authorisation provided for the placing of plant protection products and biocides on the market. The request was made to the CTB, a Dutch public authority, under Dutch national law transposing the AIE Directive. The facts of this case are somewhat different to those arising in this instance, but the decision nonetheless contains some useful general guidance.
55. In Bayer, the CJEU found, that the concepts of “emissions into the environment” and “information on emissions into the environment” are not to be interpreted in a restrictive way. This is because the inclusion of those concepts in the Directive is designed to ensure that certain grounds for the refusal of information cannot be invoked against the disclosure of ‘information relating to emissions into the environment’. That provision in turn gives effect to the principle (provided for in article 4 and Recital 16 of the Directive) that disclosure must be the general rule of the AIE regime and the grounds for refusal must be interpreted restrictively, and to the general principle of the widest possible access to environmental information held by or for public authorities set out in Recital 1 (see paras 55-58).
56. The CJEU went on to find that, despite reference in the Aarhus Guide to the definition of “emissions” contained in the Industrial Emissions Directive, the concept of “emissions” in the AIE Directive was a wider one and was not limited to emissions emanating from industrial installations. It noted that such a restriction would be contrary to the express wording of article 4(4)(d) of the Aarhus Convention which provides that although information may be refused to protect the confidentiality of commercial and industrial information subject to certain conditions, this shall not apply with regard to“information on emissions which is relevant for the protection of the environment”. The CJEU pointed out that“information concerning emissions emanating from sources other than industrial installations…are just as relevant to environmental protection as information relating to emissions of industrial origin” (para 72).
57. However, while the concept of “information on emissions into the environment” is to be interpreted broadly, it does not cover all information that is connected to emissions in any way. The judgment states that it must be“interpreted as covering not only information on emissions as such, namely information concerning the nature, composition, quantity, date and place of those emissions but also data concerning the medium to long-term consequences of those emissions on the environment.” (para 87).
58. Having considered all of the above matters, I am not satisfied that the Department has provided adequate reasons for its decision in relation to the information sought, and I will annul the decision of the Department. It would have been open to me to seek further submissions from the Department and carry out a detailed examination of the relevant records in line with the Commissioner’s de novo jurisdiction. However, I do not consider it appropriate to do so in this case given the lack of reasons provided by the Department, the volume of records in question and the potential effect of the passage of time in relation to this request. Given the high number of cases currently on hand in this Office, it would not be an effective use of resources for this Office to carry out the above steps at this stage, and I consider it more appropriate for the Department to carry out a new internal review process in respect of this appeal. I note that a new agency, MARA, has now been set up with responsibility for this particular area and it may be appropriate for the Department to transfer this request to that agency.
59. As outlined at above articles 7(4) and 11(4) of the AIE Regulations require public authorities to provide reasons for refusal at both original and internal review decision stages, consistent with Article 4(5) of the AIE Directive. In my view, for the reasons detailed in the analysis section, the Department did not provide adequate reasons for refusal of the information requested by the appellant in full, in either its decisions or submissions to this Office. Accordingly, I am satisfied that the Department did not justify its refusal on the basis that the information sought is not environmental information or under articles 8(a)(i), 8(a)(iv), 9(1)(c), 9(2)(c) and 9(2)(d) of the AIE Regulations.
60. In the circumstances where the records provided for in the seven schedules ‘may or may not’, by the Department’s own admission, fall into the scope of the review, have not therefore been properly considered by the Department and includes information relating to third parties, I do not believe that it is appropriate for me to assess the records in detail and/or direct the release of information at this point. The Office has a significant number of appeals at hand, and I consider that it is not the best use of our resources to carry out the task of reviewing information which has not been done adequately by public authorities in the first instance.
61. In reconsidering the matter afresh, should the Department wish to refuse access to any of the information concerned on the basis it is not “environmental information” or wish to refuse access to any of the environmental information concerned under articles 8 or 9 of the AIE Regulations, it must fully set out its reasons for reaching its conclusions as well as, where relevant, its considerations of article 10 of the AIE Regulations, including paragraphs (3), (4), and (5).
62. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Department’s decision and direct it to carry out a fresh internal review decision.
63. 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