Cinneadh
Mr X and An Garda Síochána
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-139291-S0X9P9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-139291-S0X9P9
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether An Garda Síochána is entitled to rely on article 9(1)(a) of the AIE Regulations to refuse the information requested by the appellant
25 March 2024
1. On 8 May 2023, the appellant made a request to An Garda Síochána (Reference No. AIE-004-2023) under the AIE Regulations, seeking information as follows for thirty-five (35) listed dates:
“Information relating to the quantity of explosives used by Killola Quarries on the following dates:
20-Jan-15; 25-Feb-15; 27-Mar-15; 01-May-15; 27-Jul-15; 20-Jan-16;
19-May-16; 23-Aug-16; 07-Nov-16; 23-Jan-17; 08-Feb-17; 29-Mar-17;
16-Jun-17; 17-Oct-17; 31-Oct-19; 26-Feb-21; 16-Mar-21; 14-Jun-21;
14-Jul-21; 29-Sep-21; 01-Feb-22; 10-Feb-22; 03-Mar-22; 22-Mar-22;
25-Apr-22; 16-Jun-22; 06-Jul-22; 20-Jul-22; 11-Aug-22; 26-Aug-22;
20-Sep-22; 02-Feb-23; 28-Feb-23; 06-Apr-23; 27-Apr-23
Note: My inquiry stems from the fact that local residents are concerned about the increased intensity of the blasts. Previously information was granted under AIE-002-2023 in relation to the dates of these blasts but the quantity of explosive was not disclosed.”
2. S.I. 423 of 2016 - European Union (Making Available on the Market and Supervision of Explosives for Civil Uses) requires that no explosives may be transferred within the State (whether export, import or internal transfer) except under authority of a Transfer Document. A TD.2 Form (Recipient Competent Authority Transfer Document for Explosives) is completed for internal transfers within the State, authorised by An Garda Síochána.
3. In terms of the context of this AIE request, it should be noted that environmental information released by An Garda Síochána under the above referenced previous AIE request dated 21 February 2023 (AIE-002-2023) consisted of thirty-three (33) TD.2 forms. The TD.2 Forms concerned here were released subject to certain redactions with An Garda Síochána citing the provisions of article 8(a)(i) and 8(a)(iv) of the AIE Regulations, the latter exemption being applied to refuse release of information concerning the type and quantities of explosives subject to transfer.
4. An Garda Síochána responded to the appellant’s current AIE request on 19 May 2023, refusing access to the information, “which refers to the quantity of explosives”, under the provisions of article 9(1)(a) of the Regulations. The response included the following statement: “… that the release into the public domain of detailed information in respect of explosive and associated materials at a particular location represents a significant risk to public security and that the release of such information would be certain to adversely affect An Garda Síochána’s exercise of its statutory obligations, under the Garda Síochána Act, to maintain public safety and the security of persons and property.”
5. In consideration of the required public interest test under articles 10(3) and 10(4) of the Regulations, the response also noted a need to maintain confidentiality in law enforcement and public safety matters and expressed concern that release of the requested information “could provide the opportunity for nefarious actors to utilise such information to engage in criminal activities which would endanger both the safety of life and property and could reasonably be expected to facilitate the commission of an offence”. Additionally, An Garda Síochána stated a concern that “the use of the AIE Regulations to release operational policing matters in this instance, would create a precedent in respect of future requests.”
6. The appellant sought an internal review of the decision on 21 May 2023, submitting that the information sought “is extremely pertinent to the residents of the area that are suffering the environmental effects of dust, noise, vibration, damage to property etc. from an unauthorized development” and that “the information… can prove the intensification of activity from this development from what could be regarded as a nefarious actor.”
7. On 8 June 2023, the original decision-maker for An Garda Síochána wrote to the appellant informing him that an Internal Reviewer, being a Principal Officer in the organisation, “having reviewed [the] request and associated correspondence” had decided to affirm the original decision that the material sought should not be released in accordance with article 9(1)(a). The response included the following statement: “The Internal Reviewer has concluded that given the nature and concerns around explosives and related materials, details as to their usage must be considered highly sensitive in nature with a clear security aspect with associated concerns for those transporting, using or supervising these operations. Public knowledge as to the nature and quantities used on specific dates would provide information that might be used for purposes other than those included in the original request by person’s unknown. Once such information is disclosed it is by its nature information that will be shared and can be expected to be ‘picked up’ by media and reported upon.”
8. The appellant immediately submitted an appeal to this Office on 8 June 2023. On 12 June 2023, An Garda Síochána was provided with a copy of the appellant’s statement of appeal and was requested to forward, within six (6) weeks or by 24 July 2023, both the subject matter information/ records and a final submission on any exceptions that it wished to rely upon and to explain its decision(s) on the specific information/records at issue.
9. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to all submissions made by the appellant and by An Garda Síochána.
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’).
10. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
Positions of the Parties
11. The appellant made submissions to this Office on 19 June 2023 and 13 July 2023. The appellant submits that blasting operations at the quarry have increased significantly in frequency and intensity, leading to complaints from the local community regarding “noise, dust, property damage and distress to older and younger members of the community”. The appellant provided this Office with a copy of presentation slides from a community group meeting, and other materials, which detail local concerns.
12. The appellant submits that his request pertains to “the amount of explosives that were used at this quarry”. He submits that “the blasts in the last year increased significantly in frequency and intensity… But trying to quantify intensification of activity through description or visuals is very difficult.” The appellant submits that he has received information from An Garda Síochána regarding the frequency of blasts but that the amount of explosives used has been withheld. The appellant submits that “this data will show the limit of explosives that could potentially be used safely in the quarry but also show the intensification of the blasts over time…. that not all blasts were equal and that some were more significant in their potential to cause harm to residents and their properties.”
13. The appellant submits that “the quarry has no permission to be active and constitutes unauthorized development” and that “while [he] struggle[s] to understand how a quarry with no permission which causes damage to property and affects people’s health and wellbeing is allowed to receive explosives, [he] simply cannot countenance the position of the Gardaí”. He argues that “[for An Garda Síochána] to say they cannot give out the information [he] request[s] ‘as there is a potential for nefarious actors to cause damage to people and property’ is beyond ridiculous in these circumstances… The effect of such a decision actually protects ‘nefarious actors’ who are causing ‘damage to people and property’ and provides a level of cover, prevents scrutiny of their actions and is a barrier to them being held accountable. This simply isn’t right.”
14. The appellant argues that the information requested “pertains to past events and is not a predictor of future events.” He disputes An Garda Síochána’s position that the information regarding the quantity of explosives used in these circumstances should not be supplied. He submits that he “did not enquire as to the type of explosives, nor where they are likely to be stored or any information as to their time of delivery or whom they were to be delivered to or by.” Lastly, he submits that “a simple google request provides information that is freely available to the public regarding blasting in quarries should they be so minded to find out.”
15. A submission from An Garda Síochána was received by this Office on 13 July 2023 along with a copy of the records which were part-released by An Garda Síochána in response to the previous AIE request concerned. An Garda Síochána, in its submission, reaffirmed its position and provided further detail as to the basis for its refusal on the grounds of article 9(1)(a) of the AIE Regulations.
16. An Garda Síochána submits that the records identified and part-released in AIE-002-2023 detail the quantity of explosives and associated materials transported to the quarry on particular dates. It submits that “explosives may be used on the date of delivery to the quarry or may be stored there for later use”, and that “the records do not indicate the amount of explosives used in individual blasts or on particular dates.”
17. An Garda Síochána submits that in the current request (AIE-004-2023), “the appellant has specifically sought the quantity of explosives utilized on each occasion blasting occurred at the named quarry”, and “this request was refused based on Article 9(1)(a)”, explaining – “It is based on the reasonable and realistic expectation that the release of this information into the public domain would be of significant interest to criminal and terrorist elements. It is imperative that… explosives and associated materials do not fall into the hands of criminal or terrorist groups. The quarry in question regularly has … quantities of explosives and associated materials on site. It is self-evident that the release of such information into the public domain would clearly present an opportunity to nefarious elements to seek to access, by mean of serious criminal activity, … explosives and associated material. Such materials falling into criminal or terrorist hands would clearly adversely affect public security. It is manifestly not in the public interest that explosives and associated materials are placed at risk of theft by criminal or terrorist elements.”
18. An Garda Síochána argues that it has a statutory responsibility to maintain public safety and the security of persons and property and that it is satisfied that the release of the redacted information would be certain to adversely affect An Garda Síochána in the exercise of these statutory obligations. It notes “a particular concern around the fact that explosives delivered on a particular date may not necessarily be utilized on that date and may instead be stored at the quarry for future use.” It submits that Section 7(1) of the Garda Síochána Act, 2005 provides, that the functions of An Garda Síochána include providing policing and security services for the State with the objective of, inter alia, - (i) Protecting the security of the State, therefore obliging An Garda Síochána, amongst other duties, to safeguard the internal security of the State. It submits that in this context, “An Garda Síochána is charged with preventing, detecting, and investigating terrorist and terrorist-related offences; and protecting the State from espionage, sabotage and unlawful acts aimed to subvert or undermine parliamentary democracy or the State’s institutions.” It further adds that “threats to the security of the State can and do arise from terrorist groups, organized crime gangs and individual malignant actors.”
19. An Garda Síochána submits that it is committed to complying, to the greatest extent possible, with the spirit and legislative provisions of the AIE Regulations, “However, information cannot be given into the public domain which would afford an advantage to criminally minded persons or groups who are intent on seeking out opportunities to threaten the security of the State or to endanger the safety of persons or property.” It submits that the release of the information already provided to the requester, “demonstrates the bona fides of the Garda Organisation in seeking to release the information held by An Garda Síochána in respect of blasting at the quarry, while at the same time mitigating, to the greatest extent possible, the risk of compromising [its] efforts in respect of ensuring both the security of the State and the safety of the public.”
20. An Garda Síochána submits that the records already released to the appellant “do indeed show that blasting appears to have occurred at a greater frequency in 2022” and that “the information refused in respect of the quantity of explosives does not add greatly to the information already available to [the appellant] or the wider public. An Garda Síochána refers to the appellant’s statement of appeal to this Office wherein it is submitted that the refused information ‘directly influenced the above listed effects’, namely ‘property damage, large dust plumes that can cause serious breathing difficulties, noise and vibrations’. An Garda Síochána submits that “while [it] does not doubt that blasting activity at the quarry does indeed cause the aforementioned effects, [it] is not satisfied that the release of the quantity of explosives delivered on a particular date adds significantly to the public understanding of these effects.” It submits that – “Property damage, release of dust, noise and vibrations from the quarry are caused by multiple factors over and above the total quantity of explosives delivered on a particular date… These factors include the quantity of explosives used in each individual blast, the location of each individual blast within the quarry, if the individual blast occurs below ground or at surface level, prevailing weather conditions such as wind speed and direction, etc.” It submits that “none of this information is available from Garda records” and that “the total quantity of explosives and associated materials delivered on a particular date, which is all that is available from the redacted Garda records, are of limited value in assessing the effect of blasting activity when compared to these other more pertinent factors.” An Garda Síochána argues that “the limited value of the information held by An Garda Síochána must be balanced against the clear security implications should this information be released.”
21. In response to the appellant’s assertion that the quantity of explosives utilised on each date blasting occurred should be released as it ‘does not constitute a prediction of future use or detail specific information that may compromise a future operation’, An Garda Síochána submits that “while the refused information does not predict future use of explosives at the quarry, it certainly does represent a threat to ongoing security at the quarry”. In this regard, An Garda Síochána explains that the refused information shows that, on a regular basis, … quantities of … explosives and associated materials are held at the quarry in question” and that releasing this information into the public domain, places the quarry “under significant threat” and that “this threat is both reasonable and realistic”.
22. In response to the appellant’s assertion that the quarry ‘does not have planning permission and that an enforcement notice has been issued by the local Council to cease operations’, An Garda Síochána submits that “the records held by An Garda Síochána bear no relevance in respect of the quarry’s planning permission status.”
23. An Garda Síochána summarises its consideration of the required public interest test and expresses cognisance of “the overarching aim of the Regulations to enhance the level of environmental information available to the public in the broadest possible manner.” It notes that “while there is a public interest in information about blasting being in the public domain… there is also a considerable public interest in not endangering public safety and security through the inappropriate release of security sensitive information.”
24. An Garda Síochána submits that it is “mindful of the protections given by the Oireachtas against the release of records relating to public safety matters and to the consequences of the release of such information into the public domain.” Finally, it expresses concern “that the use of the AIE Regulations to release records in respect of operational policing matters in this instance, would create a precedent in respect of future requests.”
25. This Office wrote to An Garda Síochána on 25 October 2023 seeking further information on its reliance on article 9(1)(a) of the AIE Regulations. This included a number of specific queries as to the exact information held by An Garda Síochána specific to the appellant’s request, including whether all information had been correctly identified and provided to this Office. The Investigator also sought any available background information in the form of any current Garda guidelines, protocols, advices, codes of practice, legislation, policy and/or procedures relating to the functions/responsibilities of An Garda Síochána as to the supervision of explosives for civil uses.
26. On 6 November 2023, the Investigator received a telephone call from the AIE Officer in An Garda Síochána in respect of the above request for focussed submissions. The AIE Officer advised that the information being refused was the redacted text from the TD.2 Forms released as part of the appellant’s previous AIE request, restating that this was the only information in the possession of An Garda Síochána in relation to this request. The Investigator informed the AIE Officer that, in her opinion, it was unclear as to whether An Garda Síochána held information concerning explosives used on the specific dates referenced by the appellant. The AIE Officer advised of his understanding that An Garda Síochána would not hold a record of the quantity of explosives used in individual blasts, but it does consider that it holds the information that the appellant is seeking here – that being the information on the quantities of explosives on the redacted TD.2 Forms concerned.
27. An Garda Síochána followed up with a written submission on 6 November 2023. Firstly, it provides confirmation that the only records held by An Garda Síochána relevant to this request are the TD.2 Forms “for each of the dates in question”. In response to the Investigator’s query regarding differences between the ‘Date of Transfer’ indicated on the TD.2 Forms and the dates outlined in the appellant’s request, An Garda Síochána submits that it “cannot comment as to the source of the date information provided by the requester… [and] can confirm that all information held by An Garda Síochána which is subject of the current request has been identified and provided to [this Office].” With regard to the provisions of article 7(5) of the AIE Regulations, An Garda Síochána submits that appropriate searches were conducted at the local Garda Station and Galway Divisional Office for relevant records relating to the current request.
28. An Garda Síochána submits that its application of article 9(1)(a) is “based around the risk associated with making public the fact that … amounts of particular explosives and associated materials are routinely held at the quarry.” It submits that “While the records requested are historical in nature, they do show that … quantities are present at the quarry on an increasingly regular basis.” It argues that “Making the information public provides the opportunity for criminal elements to engage in actions such as placing the quarry under surveillance, or intimidation or coercion of employees, designed to steal explosive materials.” It adds that “The consequences of the theft of explosives from this quarry are sufficiently serious for [it] to have applied article 9(1)(a)” and that “The public security concern remains as the quarry remains operational (notwithstanding ongoing Court challenges around planning) and the risk of theft of explosives is live.”
29. On further review of the records provided by An Garda Síochána, the Investigator identified two (2) dates where no corresponding TD2. Forms had been provided. The Investigator wrote to An Garda Síochána again requesting a copy of the outstanding records – i.e. 06 April 2023 and 27 April 2023.
30. At this time, the Investigator also put a number of further queries to An Garda Síochána, including on foot of further correspondence received from the appellant on 6 November 2023. The Investigator advised the AIE Officer that the appellant has reconfirmed to this Office that his request only relates to the quantity of explosives used, and in order to “demonstrate an increase in intensity of explosions over time". The appellant’s latest position was conveyed in that, if the concerns of An Garda Síochána relate most specifically to recent blasting events, “say the last three months or so”, then the appellant is “not concerned if these are omitted for operational reasons". The Investigator also requested An Garda Síochána to confirm the following:
(i) Whether operational Garda management were consulted on the decision-making in relation to this AIE request, and if so, could it provide a copy of the views/recommendations from the local Garda Division; and
(ii) Given that potential release of the information concerned was considered to have an adverse impact on public security, could it confirm whether the views/recommendations of the Garda National Crime & Security Intelligence Service (GNCSIS) were also obtained in relation to this specific AIE request.
(According to the Garda website ( here ), the role of GNCSIS is to identify and analyse the threat to the State from both terrorists and organised crime gangs, supporting operational units by providing intelligence leads relative to both areas.)
31. On 8 November 2023, the two (2) outstanding TD.2 Forms relevant to the request were provided to this Office. In response to the appellant’s conveyed willingness to reduce the scope of his request somewhat, An Garda Síochána submits that it is not in a position to release any part of the redacted information from the relevant TD.2 forms, nor does it consider that there is scope to apply any form of time limit to the request, for example by releasing some older information. An Garda Síochána reaffirms its position that article 9(1)(a) of the AIE Regulations may be applied as “the release of the redacted information publicly discloses the quantities of explosives on site at the quarry on a regular basis” … such that there is a “seriousness of the security concerns… and… potential grave consequences should such material be targeted for theft by criminal elements.” An Garda Síochána also submits that “the information redacted from the TD.2 forms does not contain the quantity of explosives used in individual blasts, it only records the amount of explosives transferred to the quarry and as such is not the specific information sought by the requester.”
32. In relation to the specific queries raised by the Investigator regarding decision-making input in respect of this AIE request, the AIE Officer stated that “Advice received from senior operational Garda management in respect of the release of TD.2 forms is that ‘Maximum caution to be exercised for security reasons prior to disclosing any information in relation to the type and quantity of explosives used.’” The AIE Officer also confirmed that the views of the GNCSIS were not sought as “in this instance… given [the AIE Officer’s] own strong views and those of senior operational Garda management, this was not deemed necessary.”
33. At this time, and acknowledging it not being included in its decision in respect of this AIE request, An Garda Síochána submits that the provisions of article 8(a)(iv) also apply to the request. An Garda Síochána submits that article 8(a)(iv) means that “if information about the proceedings of a public body, would were an FOI request to be made seeking discovery of it, be capable of being protected under the FOI Act, a public body must not release this information under the AIE Regulations.” It submits that the Freedom of Information Act provides significant protections against the release of records held by An Garda Síochána relating to law enforcement and public safety. In particular, it submits that “Section 32(1)(a)(ix) and Section 32(1)(c) provide that a request for records, the release of which may reasonably be expected to prejudice or impair the security of a building or other structure or to facilitate the commission of an offence, may be refused.”
34. An Garda Síochána argues that “Details of the quantities of explosives transferred to the quarry, for reasons already outlined, clearly satisfy the provisions of Section 32(1)(a)(ix) and Section 32(1)(c) of the Freedom of Information Act and as such fall within the grounds set out at Article 8 of the [AIE] Regulations which mandate refusal. This does not relate to emissions into the environment and as such the provisions of Article 10(1) do not apply.” Consideration of articles 10(3) and 10(4) of the Regulations follows, weighing the public interest served by disclosure against the interest served by refusal.
35. In favour of refusal, An Garda Síochána submits that, “[it] is mindful of the protections given by the Oireachtas against the release of records relating to law enforcement and public safety matters and to the consequences of the release of such information into the public domain; … especially conscious of the need for An Garda Síochána to be able to maintain confidentiality in law enforcement and public safety matters; … concerned that the release of detailed information in respect of explosives and associated materials could provide the opportunity for nefarious actors to utilise such information to engage in criminal activities which would endanger both the safety of life and property; and … concerned that the use of the AIE Regulations to release records in respect of operational policing matters in this instance, would create a precedent in respect of future requests.” It states that in favour of release, it considered “the intention of the Regulations to favour release of environmental information in the broadest possible manner ([it has] tried to do so by providing the already released records, which are indicative of increased activity at the quarry); and … [it has] also considered the right of the public to access to information on the environment and in exercising their rights under the AIE Regulations, ensuring openness and transparency of An Garda Síochána’s functions, the ability of the public to hold the decisions of public bodies to scrutiny, and the need for the public to be better informed on environmental affairs.” Finally, “on balance”, it submits that “the public interest served by the release of the records sought does not outweigh the substantial public interest served by the ability of An Garda Síochána to carry out its law enforcement and public safety functions effectively ... and as such [it] believe[s] that the provisions of article 8(a)(iv) can also be applied to the request.”
36. This Office wrote to the appellant on 9 November 2023 seeking clarity on the wording of his AIE request and confirmation of the precise TD.2 Forms concerned with the request. The Investigator also provided a summary of the submissions received by An Garda Síochána, including its contention that “the information redacted from the TD.2 forms does not contain the quantity of explosives used in individual blasts, it only records the amount of explosives transferred to the quarry and as such is not the specific information sought by the requester.” The Investigator specifically sought the appellant’s view on this point, i.e. that the redacted information in the TD.2 forms may not be the specific information that the appellant is seeking to access.
37. Also, on 9 November 2023, the appellant advised this Office of a High Court judgment now issued ( [2023 IEHC 610 ]) in respect of an injunction application against Killola Quarries. The Order of Humphries, J. sets out that “quarrying and associated activities including the blasting, extraction, processing, production, storage, distribution of any quarried and/or associated materials, and for this purpose all quarrying and associated activities at the site are to be treated as unauthorised until further order”, pending substantive hearing of the matters before the court. The Investigator provided a copy of this judgment to An Garda Síochána and queried whether it impacted on the public security concerns cited concerning the release of the information requested by the appellant. On 10 November 2023, An Garda Síochána responded to this request submitting that “The Order is a temporary measure in advance of a full hearing, and operations at the quarry may well resume. As such [it] believe[s] that the security concerns in respect of this request still stand.”
38. On 19 November 2023, the appellant made further submissions to this Office. Firstly, the appellant submits that his request for environmental information relates specifically to the redacted information concerning the “quantities” of explosives listed on the thirty-five (35) TD.2 forms identified by the Investigator – as listed in Column A of Appendix 1 to this decision. The appellant also acknowledges the position of An Garda Síochána in this matter and states that the information already released “was invaluable in proving the increase in activity in the Quarry and [he] do not wish to be the cause of a security concern”, likening the current issue to a “catch-22 situation”. The appellant also agrees with An Garda Síochána’s contentions that factors such as the patterns used to lay the explosives, the depth and the timing of the blasts would also contribute to the intensity of blasts, and that such information was not held by An Garda Síochána. Finally, the appellant puts forward a suggestion as to how he could “obtain the information sought and not compromise the Gardaí if they are so amenable”. The appellant proposed that “if someone could review the TD.2 Forms and observe on which date the lowest amount of explosives was transferred to the site, then this information can be used to calculate the % increase in explosives delivered to the site on each other date.” The appellant submits that “[he] could then see if there was an increase in explosives in terms of percentage being delivered to the site without showing how much was being delivered”.
39. The Investigator carefully considered the contents of the appellant’s submissions, however, it is important to note that an appeal to this Office is limited by the scope of the AIE request concerned and decision of the public authority with regard to that request. Accordingly, the Investigator advised the appellant that this review solely concerns access to information on the “quantity” of explosives detailed on the TD.2 forms and as such, information concerning percentage changes in the quantity of explosives transferred falls outside the scope of the original request. The Investigator further advised the appellant that it was open to him to make a separate AIE request to An Garda Síochána for such environmental information, should he wish to do so.
40. At this point, and in line with this Office’s established procedures, in circumstances where the appellant appeared to be seeking access to environmental information which was considered to be outside of scope of the current review, the Investigator asked the appellant to confirm whether he would like to continue with the current appeal. On 20 November 2023, the appellant confirmed that he did not wish to withdraw the appeal.
41. On 26 January 2024, 6 February 2024, 13 February 2024 and 28 February 2024, the appellant provided further material to this Office referencing the adverse environmental impacts of unauthorised quarries and also providing copies of a number of “independent forensic engineer reports” on residential properties located close to the quarry concerned with the request. In addition, in respect of the above referenced High Court proceedings, this Office was informed on 14 February 2024 that “counsel for the second to fourth respondents had advised the High Court on 29th January [2024] that his clients would not be contesting the proceedings further and would undertake not to carry out any further quarrying pending obtaining the necessary consents”. The appellant submits that as a result of these developments “there is now no reason to withhold the quantity of explosives used in [the quarry] as the data is purely historic and there is no longer a security risk as explosives will no longer be delivered to [the site]”. The appellant also reaffirms the importance of release of the information “to [himself] and others in [his] locality so [they] can show the significant increase in intensity from the explosions carried out over the last few years.”
42. 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 affirm, annul or vary it. Where appropriate in the circumstances of the appeal, I will require the public authority to make available environmental information to the appellant.
43. It may be noted that there could be some ambiguity regarding the phrasing of the AIE request, in particular the presence of the word “used”. However, in light of the content of submissions from the parties, as summarised above, and a review of the information at issue, it appears to me that both parties are in agreement on (a) that definitive dates on which the quantities of explosives were “used” at the quarry is not held by An Garda Síochána, and (b) that the available information which is being sought in fact refers to the quantities of explosives transferred to the quarry as listed on the TD.2 Forms. I consider the fact that An Garda Síochána has refused release of the information under an exemption provision of the AIE Regulations, implies acceptance that it holds the information requested.
44. Therefore, I am satisfied that the appellant’s request for environmental information relates specifically to the information concerning the “quantities” of explosives listed on thirty-five (35) TD.2 forms, where the ‘Date of Single Transfer’ is listed as follows:
20-Jan-15; 02-Mar-15; 27-Mar-15; 01-May-15; 27-Jul-15; 20-Jan-16;
19-May-16; 24-Aug-16; 08-Nov-16; 24-Jan-17; 08-Feb-17; 30-Mar-17;
16-Jun-17; 17-Oct-17; 31-Oct-19; 26-Feb-21; 16-Mar-21; 14-Jun-21;
14-Jul-21; 29-Sep-21; 01-Feb-22; 10-Feb-22; 03-Mar-22; 22-Mar-22;
25-Apr-22; 16-Jun-22; 06-Jul-22; 20-Jul-22; 11-Aug-22; 26-Aug-22;
20-Sep-22; 02-Feb-23; 28-Feb-23; 06-Apr-23; 27-Apr-23
45. Accordingly, my review in this case is concerned with whether An Garda Síochána was justified in its refusal to release the “Quantities” of explosives listed on the TD.2 Forms concerned (being part of the ‘Details of Explosives’ section on these forms), under article 9(1)(a) of the AIE Regulations. For the avoidance of doubt, the ‘Name/Type’ of explosives listed does not fall within scope of appellant’s request.
Article 9(1)(a) of the AIE Regulations
46. An Garda Síochána, under article 9(1)(a) of the AIE Regulations, refused access to all of the information contained in the ‘Quantities’ column listed on each of the thirty-five (35) TD.2 forms coming within the scope of this review.
47. Article 9(1)(a) 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 international relations, national defence, or public security. This provision seeks to transpose Article 4(2)(b) of the AIE Directive, which in turn is based on Article 4(4)(b) of the Aarhus Convention. Article 9(1)(a) must also be read alongside article 10 of the AIE Regulations.
48. The term “public security” is not defined in the AIE Regulations or the AIE Directive. However, I note that Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework for the free flow of non-personal data in the European Union outlines, at Recital 19:
“The concept of ‘public security’, within the meaning of Article 52 TFEU and as interpreted by the Court of Justice, covers both the internal and external security of a Member State, as well as issues of public safety, in order, in particular, to facilitate the investigation, detection and prosecution of criminal offences. It presupposes the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society, such as a threat to the functioning of institutions and essential public services and the survival of the population, as well as the risk of a serious disturbance to foreign relations or the peaceful coexistence of nations, or a risk to military interests. In compliance with the principle of proportionality, data localisation requirements that are justified on grounds of public security should be suitable for attaining the objective pursued, and should not go beyond what is necessary to attain that objective.”
49. The Aarhus Guide (p.86) explains that:
“The Convention does not define the terms “international relations”, “national defence” or “public security”, but it is implicit that the definition of such terms should be determined by the Parties in accordance with their generally accepted meaning in international law. Many national Governments already have similar exceptions in place and have interpreted them narrowly. Some countries have chosen to require information concerning the environment to be made publicly accessible, regardless of how it affects international relations, national defence or public security.”
50. In Ireland, and notably dissimilar to the Freedom of Information access regime, which provides a partial exemption for An Garda Síochána information concerning its policing and security functions, there is no specific exception provided for information held by or for An Garda Síochána under the AIE Regulations. If An Garda Síochána opts to withhold such information, it is required to explain how the disclosure would adversely affect public security or one of the other limbs of article 9(1)(a). It is not enough that disclosure should simply have an effect on public safety; the effect must be “adverse”.
Adverse Effect
51. In its original and internal review decisions, An Garda Síochána indicated that it was refusing access to the information at issue under article 9(1)(a) of the AIE Regulations on the basis that release into the public domain of detailed information in respect of explosive and associated materials at a particular location represents a significant risk to public security and the disclosure of such information would be certain to adversely affect An Garda Síochána’s exercise of its statutory obligations, under the Garda Síochána Act, to maintain public safety and the security of persons and property.
52. In its submissions to this Office, An Garda Síochána notes that disclosure of information on the quantities of explosives on site at the quarry on a regular basis presents serious security concerns and potential grave consequences should such material be targeted for theft by criminal elements. In noting that the information requested is historical in nature (transfer dates between January 2015 – April 2023), it submits that this information lends itself to reveal the presence of explosives on an increasingly regular basis.
53. When relying on article 9(1)(a) 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 international relations, national defence, or public security as set out by the CJEU at paragraph 69 of Land Baden-Wurttemberg v DR, Case C-619/19 .
54. The Minister’s Guidance on the implementation of the AIE Regulations which outlines that information may be withheld under article 9(1)(a) if it is “information damaging to public security… e.g. information about explosives or firearms storage or manufacture”. However, in this case it can be noted that the appellant has not sought the name or type of explosives concerned or any detailed information relating to the manufacture, transport or storage arrangements for explosive materials.
55. The withheld information provides details of the quantity of explosives transferred to a particular quarry. This specific level of information in relation to the use of commercial explosives in Ireland cannot be said to be in the public domain and An Garda Síochána considers that “maximum caution” be exercised when contemplating release of the “type and quantity of explosives”. (Emphasis added) An Garda Síochána clearly believes that disclosure of this information would constitute a threat to public security and strongly contends that this assertion is “both reasonable and realistic”.
56. Having examined the withheld information and carefully reflected on the submissions from An Garda Síochána, I am satisfied that there is a substantial likelihood of the adverse effect, i.e. threat to public security, occurring if the withheld information were to be disclosed.
57. I therefore consider that the exception as set out in article 9(1)(a) 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.
Public Interest Test
58. 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.
59. 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).
Public interest arguments in favour of disclosing the withheld information
60. 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.
61. There is undoubtedly a strong public interest in transparency as to how quarries operate with regard to environmental factors, and the appropriate regulation of same. In this particular case, there is a real public interest in access to information to inform proceedings initiated by local residents to halt blasting on the basis of a risk of significant environmental damage. The appellant has provided clear reasons as to why he is seeking specific information concerning quantities of explosives, i.e. in order to quantify an alleged intensification of activity, which he argues is difficult to do so by other means.
Public interest arguments in favour of maintaining the exception
62. An Garda Síochána has argued that release of the withheld information, in its view, would constitute a threat to public security if made available to the public at large, as it would provide an opportunity for criminal elements to engage in actions such as placing active quarry sites under surveillance, or intimidation or coercion of employees, designed to steal explosive materials, and that it would not be in the public interest to disclose information which is likely to lead to such actions.
63. I accept that that there is a substantial likelihood that disclosure of the withheld information could facilitate those with criminal intent to engage in the potential criminal actions outlined by An Garda Síochána.
Balance of the public interest arguments
64. The public interest in disclosure of the withheld information is that of achieving transparency and accountability in matters of alleged unauthorised development, especially of quarries, which by their nature have a significant impact on landscapes, ecosystems, and local communities. 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 endangering public safety and security.
65. 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 public security exceeds the public interest in the disclosure of the withheld information, therefore I conclude that the exception available in article 9(1)(a) of the AIE Regulations should be maintained in the current circumstances of this case.
66. As I have found that the information sought is exempt from disclosure due to article 9(1)(a), I am not required to consider the application of article 8(a)(iv) to this appeal.
67. Having carried out a review under article 12(5) of the AIE Regulations, I affirm the internal review decision of An Garda Síochána in this case.
68. 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.
Ger Deering
Commissioner for Environmental Information
Appendix 1 – TD.2 Forms relevant to AIE Request AIE-004-0023
| COLUMN A | COLUMN B |
| An Garda Síochána TD.2 Forms –'Date of Single Transfer' reference | AIE Request (AIE-004-2023) –Appellant Listed dates |
| 20 January 2015 | 20 January 2015 |
| 02 March 2015 | *25 February 2015 |
| 27 March 2015 | 27 March 2015 |
| 01 May 2015 | 01 May 2015 |
| 27 July 2015 | 27 July 2015 |
| 20 January 2016 | 20 January 2016 |
| 19 May 2016 | 19 May 2016 |
| 24 August 2016 | *23 August 2016 |
| 08 November 2016 | *07 November 2016 |
| 24 January 2017 | *23 January 2017 |
| 08 February 2017 | 08 February 2017 |
| 30 March 2017 | *29 March 2017 |
| 16 June 2017 | 16 June 2017 |
| 17 October 2017 | 17 October 2017 |
| 31 October 2019 | 31 October 2019 |
| 26 February 2021 | 26 February 2021 |
| 16 March 2021 | 16 March 2021 |
| 14 June 2021 | 14 June 2021 |
| 14 July 2021 | 14 July 2021 |
| 29 September 2021 | 29 September 2021 |
| 01 February 2022 | 01 February 2022 |
| 10 February 2022 | 10 February 2022 |
| 03 March 2022 | 03 March 2022 |
| 22 March 2022 | 22 March 2022 |
| 25 April 2022 | 25 April 2022 |
| 16 June 2022 | 16 June 2022 |
| 06 July 2022 | 06 July 2022 |
| 20 July 2022 | 20 July 2022 |
| 11 August 2022 | 11 August 2022 |
| 26 August 2022 | 26 August 2022 |
| 20 September 2022 | 20 September 2022 |
| 02 February 2023 | 02 February 2023 |
| 28 February 2023 | 28 February 2023 |
| 06 April 2023 | 06 April 2023 |
| 27 April 2023 | 27 April 2023 |