Cinneadh
Mr. X and Fingal County Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156995-J4J7Y1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-156995-J4J7Y1
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council was justified in withholding relevant information under articles 8(a)(iv) and 9(1)(b) of the AIE Regulations
30 January 2026
1. The appellant’s request in the case concerns materials shared between the Council andWSP Consultants (WSP) . It can be noted that the Council is carrying out an investigation regarding the operation of the North Runway at Dublin Airport in relation to current planning conditions. In April 2023, WSP was engaged by the Council to provide expert opinion in relation to the ongoing investigation, including a review of information provided by Dublin Airport Authority (DAA) to the planning authority (the Council) to inform its investigation.
2. On 6 January 2025, the appellant submitted the following AIE request to the Council:
“Please supply me with all records shared between Fingal County Council and WSP Consultants on the enforcement investigation into alleged illegal flights path off the North Runway. Please share all reports, emails and minutes of meetings. Please date the request from September 1st, 2022…”
3. On 4 February 2025, the decision-maker for the Council responded as follows:
“I have decided to refuse access to this request, having regard to the provisions of article(s) 8(a)(iv) and 9(1)(b) of the AIE Regulations and under of the Freedom of Information Act 2014 provisions of Articles 32(1)(a)(i), and Article 32(1)(a)(ii) … The records concerned relate to ongoing legal case that is currently before the High Court. Therefore, it is not in the possible to release requested records. Disclosure of the records at this point in time may harm the ongoing judicial process and cause prejudice in these matters, and therefore they should therefore be maintained as confidential…”
4. On 4 February 2025, the appellant sought an internal review. He noted the Council’s position regarding “ongoing legal case” and commented as follows: “This seems to refer to the 65 nighttime flights court case. That is not the subject of this request. My request is in relation to the alleged illegal flight paths from the North Runway that has been under enforcement for over 2 years now.”
5. On 25 February 2025, the internal review affirmed the Council’s original decision to refuse access to the information under articles 8(a)(iv) and 9(1)(b) of the AIE Regulations and the above referenced provisions of the FOI Act 2014. The internal review decision also stated:
“Schedule of Records
Section 32(2) Where an FOI request relates to a record to which subsection (1) applies, or would, if the record existed, apply, and the head concerned is satisfied that the disclosure of the existence or non-existence of the record would have an effect specified in paragraph (a), (b) or (c) of that subsection, he or she shall refuse to grant the request and shall not disclose to the requester concerned whether or not the record exists.
Accordingly, no schedule is provided as part of this internal review for the above reasons. Emissions [where information is refused under Article 8 and/or 9(1)(c)] In reaching the above decision and where information has been refused under Article 8 and/or 9(1)(c), I have in accordance with Article 10(1), examined whether your request relates to information on emissions into the environment and have determine that it does not.
Public interest test
Furthermore, in accordance with Article 10(3) and 10(4) I have weighed the public interest served by disclosure against the interest served by refusal of your request. I have determined that the public interest would not be served by disclosing the information you request. The records relate to ongoing investigations, enforcement and legal processes and would not be in the public interest to be released.”
6. On 27 February 2025, the appellant submitted an appeal to this Office as follows:
“… I made a request for records shared between [the Council] and [WSP] regarding illegal flight paths from the North Runway at Dublin Airport. [The Council] have had an enforcement investigation open on this issue for over 2 years now but no decision has been made. They have contracted WSP to help with the investigation. However, this investigation has now stalled. The public have sent in enforcement complaints to [the Council] soon after the North Runway opened in Aug 2022. However, they are frustrated at the lack of progress and apparent unwillingness to make a decision. The public should be entitled to the environmental information shared between [the Council] and WSP. The public should not have to wait indefinitely for this information. [The Council] state that the request does not relate to emissions into the environment. I reject that statement as these divergent flight paths are causing both GHG emissions and air pollution for the population under these flight paths. Furthermore, I refute their public interest test statement. The refusal to release this information is damaging public health and faith in proper procedures. The release of this information will help inform the public on the divergent flight paths and hopefully find a resolution to the problem. Therefore, it's of huge public interest to release this information, having patently waiting so long. The public are losing faith in the planning system and the right to environmental information.”
7. On 5 March 2025, the Council was provided with a copy of the appellant’s statement of appeal and was requested to forward both the subject matter information/records at issue (main records) and a final submission explaining and justifying the basis for its decision.
8. On 3 April 2025, the Council provided this Office with submissions and a schedule of records which identified ten (10) records, broken down into 56 pages or sub records, as follows – Records 1-5, Records 6-7, Records 8-25, Records 26-27, Records 28-29, Records 30-34, Records 35-38, Records 39-40, Records 41-51, and Records 52-56. A copy of the main records were also provided, which included certain redactions, described by the Council as “Email addresses and phone numbers… redacted for GDPR reasons… and also where [the Council does not] have consent of the person(s) to release… information”, and “Information in relation to ongoing planning applications lodged with the Council where a decision is yet to be made by the Planning Authority, and that are not related to any enforcement investigation that is the subject of this request”. The Council also submitted that the Planning Enforcement section has several ongoing planning enforcement proceedings at various stages of the enforcement process that are relevant to this AIE request in relation to records shared between the Council and WSP.
9. On 1 July 2025, the investigator assigned to this case wrote to the Council seeking further information on the ongoing investigations, enforcement and legal processes referenced by the Council, and inviting further submissions concerning the Council’s reliance on articles 8(a)(iv) and 9(1)(b) of the AIE Regulations.
10. On 15 July 2025, the Council provided this Office with fresh submissions, including:
“On reflection, and having reviewed the AIE Request and the Council’s response to same, it appears that the said response was based on an incorrect understanding and interpretation of same – which was not reflective of the narrow request actually made. It thus appears that the Council adopted an overly broad interpretation to the said request in error – as outlined below, many of the 56 records contained in the schedule of documents do not in fact fall within the scope of the original request.
By way of general observation, it should be noted that the said AIE Request does not relate to the“65 night-time flights” High Court case – which judicial review proceedings concern a challenge to an Enforcement Notice issued under s.154 of the Planning and Development Act 2000, as amended (“the PDA”) for noncompliance with a specific Condition attached to planning permission regarding a limitation on the number of night-time flights permitted at Dublin airport during specific hours (see Condition No.5 of Planning Permission Register Ref. F04A/1755 / ABP Ref: PL 06F.217429). This case, and the underlying enforcement investigation informing same, does not concern“flight paths” and, thus, is not relevant to the AIE Request. We apologize for any confusion in that regard…”
11. The Council’s submission went on to clarify that only one (1) record (Records 8-25) listed on the schedule falls within scope of the appellant’s request.
12. On 21/22 July 2025, the investigator provided a copy of the Council’s full submissions dated 15 July 2025 to the appellant and also shared a copy of the schedule of records as provided to this Office.
13. On 21 July 2025, the appellant confirmed that he wished to continue with the current appeal, stating as follows:
“…I am still very interested in the records that do fall under my request but have been refused. This environmental information from WSP is over 2 years old. How long can environmental records be kept from the public? I strongly contest that it's in the Public Interest to see this environmental information as the public have been subjected to flight paths that they see as contravening planning permission and which is having a detrimental effect on their health. It’s paramount that these environmental records are released. The investigation has effectively been stalled by Fingal County Council for 2 years now. Meanwhile the public are subjected to detrimental noise impacts...”
14. On 7 August 2025, the Investigator wrote to WSP, notifying it of the AIE request and appeal at hand and providing an opportunity to make submissions on potential disclosure of the environmental information at issue, as a third party which may be affected by release of information. In correspondence received by this Office on 18 August 2025, WSP noted its consent to release of the information concerned.
15. On 5 September 2025, the Council provided an unredacted version of Records 8-25 for the purposes of this Office’s review, commenting as follows:
“… We believe the redactions are appropriate where the redacted information does not fall within the scope of the AIE request and relate to:
(i) Personal information such as email addresses, phone numbers and working hours;
(ii) Confidential Commercial Information;
This is without prejudice to the position set out in our letter of the 15 July 2025 that the records should not be released in circumstances where they relate to ongoing enforcement investigations which as outlined in said letter could result in criminal and civil enforcement action.”
16. 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. I have also reviewed the records at issue. In addition, I have had regard to:
a. 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);
b. Directive 2003/4/EC (the AIE Directive), upon which the AIE Regulations are based;
c. 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
d. The Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’).
17. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
18. As outlined above, the Council, as part of its original decision and internal review, referred to certain provisions of the Freedom of Information Act 2024 to refuse to grant the request (s.32(1)(a)(i) and (ii)) and to refuse to disclose the existence of records (s.32(2)).
19. I would remind the Council that AIE and FOI are separate regimes and that there are material differences in the grounds under which access to information can be refused under the two legislative codes. An AIE request may only be refused if the information does not exist, or if mandatory or discretionary grounds for refusal under articles 8 and 9 of the AIE Regulations apply, subject to article 10.
20. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the Council’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.
21. It is clear from the comments of the Court of Appeal inRedmond & Another v Commissioner for Environmental Information & Another [2020] IECA 83, at paragraph 51, that the nature of a review by this Office is inquisitorial, rather than adversarial in nature. The extent of the inquiry is determined by this Office and not by the parties to the appeal. A review by this Office is considered to bede novo , which means that it is based on the circumstances and the law as they pertain at the time of the decision.
22. As outlined above, during the course of this review, the Council acknowledged that it had misinterpreted the scope of the appellant’s request, and on 15 July 2025, it clarified that the information relevant to the appellant’s specific request dated 6 January 2025 was contained in Records 8-25 only. Accordingly, in the circumstances of this case, and having examined the records concerned, I am satisfied that the scope of this appeal is limited to whether the Council was justified in withholding one (1) record (Records 8-25) under articles 8(a)(iv) and 9(1)(b) of the AIE Regulations.
23. While I am required by article 12(5)(b) to specify reasons for my decision, I must also be careful not to disclose withheld information in my decisions. This means that the detail that I can give about the information at issue and the extent to which I can describe certain matters in my analysis is limited.
24. I am satisfied that Records 8-25 can generally be described as communications between the Council and WSP concerning an agreed scope of work conducted in May 2023. The communications detail project scope, administrative arrangements including fees, and output including a detailed technical note to inform an enforcement investigation moving forward.
25. Articles 8 and 9 of the AIE Regulations provide certain grounds for refusal of information. Both articles must be read alongside article 10 of the AIE Regulations. Article 10(1) provides that notwithstanding articles 8 and 9(1)(c) of the AIE Regulations, a request for environmental information shall not be refused where the request relates to information on emissions into the environment. Article 10(3) 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) 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) 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.
26. When relying on articles 8 or 9 of the AIE Regulations a public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. It must set out the reasons why it considers that the disclosure of the information at issue could specifically and actually undermine the interest protected by the exceptions relied upon, as set out by the CJEU at paragraph 69 ofLand Baden-Wurttemberg v DR , Case C-619/19. This sets a high threshold as the risk must be reasonably foreseeable and not purely hypothetical. A mere assertion of an expectation of harm is not sufficient.
27. 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).
28. 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.
29. The term “proceedings” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the CJEU in C-204/09Flachglas Torgau GmBH v Bundesrepublik Deutschland set out that the concept of proceedings “refers to the final stages of the decision-making process of public authorities” (paragraph 63). A similar conclusion was reached by the CJEU in C-60/15 Saint-Gobain Glass Deutschland v Commission. Although that case dealt with Regulations 1049/2001 and 1367/2006 rather than the AIE Directive, it considered the provisions of the Aarhus Convention, upon which both the AIE Directive and the AIE Regulations are based. The Court noted “…Article 4(4)(a) of the Aarhus Convention provides that a request for environmental information may be refused where disclosure of that information would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law,and not the entire administrative procedure at the end of which those authorities hold their proceedings” (paragraph 81). Also, Advocate General Szpunar in that case indicated that “the concept of ‘proceedings’ must be understood as covering only the deliberation stage of decision-making procedures” (see paragraph 51 of the Opinion). (emphasis added)
30. Having reviewed the content of Records 8-25, I am not satisfied that the information relates to the final decision-making stage or the final stage of any decision-making process of the ongoing enforcement investigation in relation to flight paths at Dublin Airport.
31. I am not persuaded that the Council’s submissions constitute a sufficient basis to rely on article 8(a)(iv). This article only protects the final decision-making stage of the proceedings, and not the process leading up to a decision by the Council. Therefore, I cannot find that article 8(a)(iv) of the AIE Regulations applies in the circumstances of this appeal.
32. As I have found that the information cannot benefit from the exemption provided for in article 8(a)(iv), I am not required to consider article 10(1) of the AIE Regulations.
33. Article 9(1)(b) of the AIE Regulations provides a discretionary ground for refusal of information by a public authority 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.
34. The Minister’s Guidance, in considering “The Course of Justice” states: “Environmental information relating to anything which is the subject matter of any legal proceedings, or of any formal inquiry (whether past or present), or any preliminary investigation, may be refused. Examples would include information in connection with intended prosecution of offences by the Director of Public Prosecutions or by local or other public authorities; information affecting enforcement proceedings; material arising from public or disciplinary inquiries; and information relating to preliminary or other proceedings instituted by the European Commission” (paragraph 12.3).
35. In its submissions to this Office, the Council argues that article 9(1)(b) of the AIE Regulations applies to the information which relates to an active enforcement investigation concerning “flight paths”. The Council submits: “At this juncture, it should be noted that the investigation is extremely complex and technical and requires the input of specialist consultants – the Council, as part of its statutory enforcement role, has sought to engage such consultants and its investigation, and any subsequent criminal/civil proceedings, would be undermined by the disclosure of the documents/records sought.”
36. The Council submits: “While a warning letter has issued relating to flightpaths, no decision has been made by the planning authority as to whether or not to issue an enforcement notice on this matter and the matter is still under investigation/consideration. In this regard there are number of matters of some complexity which are pending and which may also impact on the issue of flightpaths such as the decision of the An Coimisiún Pleanála (formerly An Bord Pleanála) on the s.34C “Relevant Action planning application” relating to noise quotas.”
37. It may be noted that a decision was issued by An Coimisiún Pleanála on 17 July 2025 regarding the hours of operation of Dublin Airport’s North Runway and the proposal to manage nighttime noise at the airport through an annual noise quota. (See https://fingalchamber.ie/news/daa-statement-regarding-north-runway-planning-decision ) However, the Council has confirmed to this Office, that the issuing of this decision has not changed the Council’s position on the release of the information in this case. It submits: “There are a wide range of issues relevant to the enforcement investigation into alleged illegal flight paths including consideration of the recent decision on the Relevant Action Application – which addresses to varying extents the issue of flight paths. The said Enforcement file therefore remains open, and investigations are ongoing and for the reasons set out in our submission of the 15 July there is a public interest in ensuring that the carrying out of enforcement investigations can occur on a confidential basis.”
38. Having considered the submissions of the Council, and having carefully examined the relevant records, I am satisfied that it has been established that the release of the information would adversely affect the course of justice as it would prejudice a decision on whether or not to issue an enforcement notice. I also consider that release may prejudice the position of DAA in any subsequent proceedings, adversely affecting its right to justice. It can be noted that DAA have publicly rejected claims linked with the subject matter of this investigation. (See https://www.dublinairport.com/latest-news/2023/03/15/daa-rejects-any-claims-that-it-is-in-breach-of-planning-permission-granted-in-respect-of-the-north-runway ) It is also important to note that Records 8-25 contain information provided to the Council by DAA for the purpose of a statutory investigation by the planning authority and further, there is no evidence before me to suggest that the output of the WSP project as described above has been disclosed to DAA or otherwise made publicly available.
39. I therefore consider that the exception as set out in article 9(1)(b) of the AIE Regulations has been correctly applied to the withheld information, and I will now go on to consider whether, in all the circumstances of the case, the public interest in maintaining the exception outweighs that in disclosure of the withheld information.
40. Access to environmental information may only be refused in circumstances where the limited grounds for refusal set out in the AIE Regulations and Directive apply and the interest to be protected by the refusal outweighs the public interest in disclosure.
41. Article 10(3) of the AIE Regulations and Article 4 of the Directive make it clear that the public interest must be considered based on the individual circumstances of a case. A review by this office is considered de novo and therefore it is based on the circumstances of the case at the time of the review. This approach has been endorsed by the decision of the High Court in M50 Skip Hire Recycling Limited v the Commissioner for Environmental Information [2020] IEHC 430 In this judgment, Heslin J. outlines that “the concept of the public interest affords… the discretion to weigh many factors in the balance and to do so at a particular point in time and with reference to the particular facts of the case” (paragraph 48).
42. In considering the public interest served by disclosure, I am mindful of the purpose of the AIE regime and of the overarching objective of the Aarhus Convention, which as outlined in Article 1 states: “In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.
43. There is undoubtedly a strong public interest in transparency as to the operation of the North Runway at Dublin Airport and compliance with planning conditions. In this case, there is a clear public interest in access to information, in particular by those “subjected to flight paths that they see as contravening planning permission, and which is having a detrimental effect on their health”. The appellant’s position is that there has been an undue delay in the Council reaching a decision in its enforcement investigation and that the release of pertinent information to the public in relation to the issue of flights paths is “paramount”.
44. The Council has argued that release of the withheld information, in its view, would prejudice the ongoing deliberations in respect of flight paths at Dublin Airport and should not be disclosed at this time to avoid compromising the integrity of the planning process and any subsequent proceedings (criminal/civil) with reference to ss.151-160 of the PDA. The Council points to the important role played by it enforcing planning laws and cites the judgment of the Supreme Court in Meath County Council v Murray [2017] IESC 25 (§60 et seq), including:
“The planning authority has a unique role in the planning process. Part of that role unquestionably lies in the enforcement of the code…the overarching supervisory guardian of planning control at executive level must be the statutory body established to that end and vested with the powers to that effect.”
45. I accept that there is a strong public interest in ensuring that enforcement investigations are allowed to be carried out free from prejudicial or adverse effect, including safeguarding the ability of the planning authority to withhold investigation materials from the public for the duration of an ongoing investigation as deemed necessary.
46. The public interest in disclosure of the withheld information is that of achieving transparency and accountability in matters of alleged breaches of planning conditions, in this case concerning flight paths and resulting noise pollution, which can lead to serious health impacts. Whilst I accord significant weight to this, I find that I cannot reconcile the public interest in transparency and accountability with the potential impact that disclosure could have in undermining the ongoing and complex statutory planning enforcement processes concerned.
47. Overall, despite being mindful of the requirement of the Directive and the AIE Regulations to interpret grounds for refusal restrictively, I consider that the public interest in protecting the course of justice exceeds the public interest in the disclosure of the withheld information, therefore I conclude that the exception available in article 9(1)(b) of the AIE Regulations should be maintained in the current circumstances of this case.
48. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I affirm the Council’s decision to withhold Records 8-25 under article 9(1)(b) of the Regulations.
49. 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.
Gemma Farrell
On behalf of the Commissioner for Environmental Information