Cinneadh
Right to Know CLG and Environmental Protection Agency
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-141194-Z0K8W0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-141194-Z0K8W0
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the EPA is justified in refusing certain information requested by the appellant on the basis of article 9(2)(a) of the AIE Regulations
03 November 2025
1. On 16 June 2023, the appellant submitted a request to the EPA seeking access to “copies of local authority RMCEI Plans for 2022 and 2023”.
2. On 29 June 2023, the EPA requested the appellant to refine the request as the EPA believed the request to be manifestly unreasonable in accordance with article 9(2)(a) of the AIE Regulations.
3. On 01 July 2023, the appellant responded to the EPA stating;
“RTK does not wish to reduce the scope of the request to a random % of the records. That makes no sense, as RTK would then have to request the other records via additional AIE requests to EPA, or request direct to each Co Co and therefore increase the admin required to all local authorities making environmental reports to EPA.
RTK would request that the EPA publish the records annually on the EPA website, so that there is no requirement to make an annual AIE to put these records into the public domain”.
4. On 14 July 2023, the EPA issued its decision refusing the request on the ground it was manifestly unreasonable due to the “the volume/range and complexity of the records”.
5. On 14 July 2023, the appellant requested an internal review of the EPA’s decision.
6. On 08 August 2023, the EPA issued its internal review decision. In doing so it affirmed its original decision.
7. On 10 August 2023, the appellant appealed to my Office.
8. I am directed by the Commissioner to carry out a review under article 12(5) of the AIE Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Environmental Protection Agency. 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’).
9. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
10. On 8 September 2025, this Office sought confirmation from the EPA if their position remained the same regarding reliance on an exception under article 9(2)(a) of the AIE Regulations. On 16 September 2025, the EPA confirmed they would release all 63 records to the appellant. I acknowledge the willingness of the EPA to release the information sought when contacted by this Office.
11. On 23 September 2025, this Office contacted the appellant to confirm if they wished to continue with their appeal as all records were being released. The appellant confirmed they wished to continue with the appeal unless the EPA could give an undertaking to release future RMCEI plans. I am therefore proceeding with my review of this appeal.
12. I will note that investigations conducted by this Office are de novo and each appeal is dealt with on a case by case basis. While previous decisions may offer useful guidance they do not bind this Office to take the same view in future cases, particularly where the facts and circumstances may differ. I acknowledge the appellants concerns regarding the provision of recent and/or future RMCEI plans but this review is concerned solely with the EPA’s decision to refuse the appellants request dated 16 June 2023 under article 9(2)(a) of the AIE Regulations.
13. In accordance with article 12(5) of the AIE Regulations, my role is to review the public authority's internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the public authority to make available environmental information to the appellant. This review is solely concerned with whether the EPA was justified in refusing access to the information requested on the basis that the request was manifestly unreasonable under Article 9(2)(a) of the AIE Regulations.
14. Article 9(2)(a) of the AIE Regulations provides that a public authority may refuse to make environmental information available where the request is manifestly unreasonable having regard to the volume or range of information sought. This provision seeks to transpose Article 4(1)(b) of the AIE Directive, which provides that Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable, and, in turn, is based on part of Article 4(3)(b) of the Aarhus Convention.
15. Article 9(2)(a) of the AIE Regulations must be read alongside article 10 of the AIE Regulations. 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.
16. Article 4(1)(b) of the AIE Directive provides that“Member States may provide for a request for environmental information to be refused if the request is manifestly unreasonable” . The European Commission’s First Proposal for the AIE Directive for the AIE Directive envisaged that the exception in Article 4(1)(b) would cover requests“variously described in national legal systems as vexatious or amounting to an abus de droit.” It noted that“compliance with certain requests could involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. Public authorities should be able to refuse access in such cases in order to ensure their proper functioning.” The Aarhus Convention Compliance Committee (ACCC) has emphasised that“whether or not a request is manifestly unreasonable relates to the nature of the request itself, for example, its volume, vagueness, complexity or repetitive nature, rather than the reason for the request, which is not required to be stated.” (Report adopted on request for advice by Belarus, ACCC/A/2014/1, para. 28).
17. In respect of a request which is voluminous or wide-ranging, within the meaning of article 9(2)(a) of the AIE Regulations, more than simple volume or complexity is required. Both article 7(2)(b) of the AIE Regulations and Article 3(2)(b) of the AIE Directive specifically envisage that public authorities will deal with voluminous or complex requests, albeit in a longer timeframe. In this respect, I note the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission (Konsumenteninformation), at paragraphs 108-110, and the guidance at page 84 of the Aarhus Guide. I also note the parallel duty in Article 7(1) of the AIE Directive to ensure that public authorities organise environmental information with a view to its active and systematic dissemination to the public. In his Opinion in C-217/97 Commission v Germany at paragraph 30, Advocate General Fennelly stated that this duty indicates that individual requests should, in principle, be on matters of detail. As such, the fact that a request is detailed does not mean that it is necessarily unreasonable.
18. When considering whether a request is manifestly unreasonable, it is necessary to examine the impact on the public authority of dealing with the request. In particular, I must examine whether responding to the request would involve the public authority in disproportionate cost or effort or would obstruct or significantly interfere with the normal course of its activities. In light of the findings of the Court of Justice of the European Union in T-2/03 Verein für Konsumenteninformation v. Commission, at paragraphs 101-115, I consider that the exception in article 9(2)(a) is only available where the administrative burden entailed by dealing with the request is particularly heavy. The burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request. I expect that if a public authority wishes to rely on the manifestly unreasonable nature of a request, that public authority will clearly demonstrate the actual and specific impact that dealing with the request would have on its normal activities.
19. This position is supported by recent comments from Advocate General Medina in his opinion on BnM v Commissioner for Environmental Information Case C-129/24, in which he stated,“in so far as it constitutes an exception to the general rule that information must be provided, refusal on the ground of a manifestly unreasonable request must remain exceptional” (at paragraph 117). In this opinion he also states“In particular, with regard to the volume of the information requested, according to Article 3(2)(b) of Directive 2003/4 that factor (as well as the complexity of the information requested) justifies an extension of the one-month time limit in which the administration must reply. It follows from a combined reading of Article 3(2)(b) of Directive 2003/4 and Article 4(2)(b) of that directive that the volume of the requested information alone does not render a request manifestly unreasonable” (at paragraph 119). He concludes however that a holistic view must be taken of each case, stating“it follows that determining whether a request is manifestly unreasonable depends not on the number, the nature or the frequency of requests taken in isolation, but on all the circumstances of each case” (at paragraph 125).
20. It is also important to bear in mind article 5 of the AIE Regulations and Articles 7 and 3(5) of the AIE Directive, which place duties on public authorities to organise and actively disseminate environmental information, to support the public in seeking access to information and to put practical arrangements in place to ensure the effective exercise of the right to access environmental information. It is not within this Office’s powers to examine the implementation of article 5 of the AIE Regulations or article 7 of the AIE Directive by public authorities. However, I am satisfied that the exception in article 9(2)(a) is not intended to endorse any failure by a public authority to comply with its duties to organise and disseminate environmental information under those provisions. Furthermore, in every case, regard should be had to the purpose of the AIE Regime, as reflected in Recital 1 of the Preamble 6 to the AIE Directive, which provides that“increased public access to environmental information and the dissemination of such information contribute to greater public awareness of environmental decision-making and, eventually, to a better environment. ” Accordingly, in cases involving article 9(2)(a) this Office may consider whether the information requested is the kind of environmental information that one would expect to be organised by the public authority in a manner that enables its easy dissemination.
21. In its internal review decision, the EPA outlined the request included 63 records with each record being approximately 50 pages. The EPA noted each plan would have to be examined and submitted the time to retrieve, examine and redact each record would interfere with the relevant work of the EPA. In a further submission to this Office the EPA contended,“RMCEI plans could identify specific sites/operators which the Local Authority intends to target for inspection and enforcement action” . Given the passage of time I do not consider this to now be relevant to this case. Having reviewed the information now released to the appellant, I am also not satisfied that the EPA have established with sufficient certainty that any information in the RMCEI plans would have been exempt under the AIE Regulations at the time of the request, or that identifying any exempt information would have been manifestly unreasonable having regard to the exception provided in article 9(2)(a). Much of the information contained in the plan is relatively high level, and I would also note that some public authorities already have the plans available on their websites with minimal redaction e.g. Dún Laoghaire-Rathdown County Council, here .
22. I am not persuaded the EPA has demonstrated the unreasonableness of the task entailed by the request in this case. The EPA has provided neither detailed nor specific reasoning for its reliance on article 9(2)(a) of the AIE Regulations. It has not explained, in a satisfactory level of detail, how it reached this conclusion or why fulfilling the request would impose an unreasonable burden on the organisation.
23. The EPA does not include a breakdown of the time required to process the request. While I acknowledge that it has provided a broad outline of which staff members might need to be contacted, this explanation is, in my view overly general. It gives no specific details as to the number of staff who would need to be involved, nor does it describe their day-to-day responsibilities or explain how fulfilling this request would interfere with other work. Moreover, it offers no insight into how the EPA’s wider operations would be affected.
24. As set out above, the burden is on the public authority to demonstrate the unreasonableness of the task entailed by the request, and this requires the public authority to provide a satisfactory level of detail regarding the time it would take to process the request. This detail should include how many staff members would be required, what steps would be involved in answering the request and how much time would be spent on each of these tasks as well as an estimate of the costs the public authority would incur to fulfil the request.
25. On the basis of the above, it is my view is that the threshold for finding the request to be manifestly unreasonable has not been met in this appeal. Accordingly, the EPA has not established that article 9(2)(a) of the AIE Regulations applies to this request.
26. Having carried out a review under article 12(5) of the AIE Regulations, on behalf of the Commissioner for Environmental Information, I annul the decision of the EPA to refuse to release the identified records. As the EPA has now released the requested information to the appellant, I make no further direction.
27. As noted above, I acknowledge the EPA’s willingness to engage with this appeal and release the information to the appellant when requested to do so by this Office. I would ask the EPA to note the appellant’s comments regarding the release of future RMCEI plans, and would suggest that the EPA might wish to take this opportunity to review its processes regarding RMCEI plans and to work with the local authorities involved to ensure that any future AIE request for information of this type can be dealt with in as efficient a manner as possible.
28. 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