Cinneadh
Mr A and Cork City Council
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-158227-B3J9Z3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-158227-B3J9Z3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Council is justified in refusing certain information requested by the appellant on the basis of articles 9(1)(b), 8(a)ii and 8(a)(iv), of the AIE Regulations
27 August 2025
1. On 10 January 2025, the appellant submitted a request to the Council seeking access to“all information held by Cork City Council in regard to Enforcement Case E8656 which was opened on or before 12/02/2024 in regard to alleged unauthorised development by Dildar Limited at the Former Nemo Ranger's Ground at Douglas Road, Cork”.
2. On 10 February 2025, the Council issued its decision refusing the request. The Council had identified five records which were refused under article 8(a)(i), 8(a)ii, 8(a)(iv), and article 9(1) b.
3. On 14 February 2025, the appellant requested an internal review of the Council’s decision.
4. On 13 March 2025, the Council issued its internal review decision. In doing so it affirmed its original decision
5. On 14 April 2025, the appellant appealed to my Office.
6. I have now completed my review under article 12(5) of the Regulations. In carrying out my review, I have had regard to the submissions made by the appellant and the Cork City Council. I have also examined the contents of 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’).
7. What follows does not comment or make findings on each and every argument advanced, but all relevant points have been considered.
8. In accordance with article 12(5) of the AIE Regulations, my role is to review the Council’s internal review decision and to affirm, annul or vary it. Where appropriate in the circumstances of an appeal, I will require the Council to make available environmental information to the appellant.
9. The appellant has confirmed that he is not seeking access to personal information, and therefore any personal information is not within the scope of this request. In that regard, I consider the following information to be outside the scope of the request:
a. Record 1- the name, address, telephone number and signatures of the persons making the complaint, and the specific addresses and Eircodes related to the complaint.
b. Record 2, 3- references to specific addresses relating to the complaint.
c. Record 4- the name and address of the persons who made the complaint.
d. Record 5- references to specific residential addresses.
10. I would note that I do not consider the non-specific references to various locations that do not identify individual residential addresses to constitute personal information.
11. The Council had relied on exemptions under articles 9(1)(b), 8(a)(i), 8(a)ii and 8(a)(iv), of the AIE Regulations. The scope of this review is therefore concerned with whether the Council was justified in its refusal of the information sought under articles 9(1)(b), 8(a)ii and 8(a)(iv).
12. On 12 May 2025, the Council provided a submission to this Office and stated;
“The primary basis for this refusal is based on Article 9(1)(b) the course of justice (including criminal inquires and disciplinary inquires) having consider Art 10. The secondary basis is Art 8 (a) (i), (ii), and (iv)” . The Council reported the unauthorised development was still an open enforcement file and no final decision had been made on the case. The Council maintained“disclosure of these records at this stage would adversely the course of justice” . The Council noted the public interest test had been applied and set out in the internal review decision.
13. The Council stated in the internal review decision;
“Information refused is personal information of 3rd parties and includes the name, address, contact details of 3rd parties and signatures of third parties.
Article 10 Public Interest test
I consider the following public interest factors favouring the release of the records are relevant:
• The public interest in members of the public exercising their rights under the AIE Regulations.
• Accountability and objectivity in the decision-making processes
I consider the following public interest factors favouring the withholding of the records are relevant:
• Protecting the right to privacy of members of the public
• Safeguarding the flow of information to a public body
• Ensuring a public body is able to perform their functions effectively
I consider that the public interest in preserving the privacy of the third parties involved outweighs the public interest that would be served were the records to be released to you. Releasing complaints received from members of the public would enable the complainants to be easily identified, as well as including details of their property and other personal information contained within the record.
The Council considers that the public interest in disclosure does not outweigh the interest served by refusal as per Article 10(3) of the AIE Regulations”.
14. The Council outlined their position in relation to article 9(1) (b) stating;
“I consider the following public interest factors favouring the withholding of the records are relevant:
• Premature release could contaminate the decision-making process
• The need to preserve confidentiality in investigations and deliberative processes in some circumstances, particularly where those deliberations relate to ongoing investigations
• Release of the information sought may negatively affect the ability of Cork City Council to use alternative engagement prior to, or as an alternative to formal enforcement proceedings.
• Vital interests of the community are served by effective law enforcement and administration,
The subject matter of your AIE request is an open enforcement file. As a planning authority Cork City Council has functions, powers and obligations relating to planning enforcement. Records are refused on the basis that this is an open enforcement file”.
15. On 08 April 2025, the appellant provided a submission to this Office in which the following arguments were made;
“In this case the Planning Authority decided not to disclose any information in regard to the identity or landholdings of complainant or any 'natural person'. However this issue could and should have been addressed by redacting the identity, addresses or property details of any third-party complainants”.
“In this case the main purpose of my request was to seek information in regard to unauthorised developments which may have been carried out by or on behalf of Dildar Ltd. which is not a 'natural person' and is the registered owner of the land on which a notice has already been served by the Planning Authority under section 8 of the Planning and Development Act, 2000 (as amended). In my opinion Dildar Ltd is not entitled to confidentiality under article 8 (ii) in relation to the planning status of its development activities”.
“However, there would appear to be no prospect of criminal proceedings in this case given that no Section 152 Warning Letter or Section 8 Notice was issued. While it is claimed that "this file is a matter of ongoing investigation" no records of any kind have been generated since the Planning Inspector's report of 22nd February 2024 and there was no reference in the planning reports to any ongoing investigation when retention permission was recently granted to Dildar Ltd under 24/43181”.
16. The appellant also contends the Council relied on the public interest criteria under the Freedom of Information Acts and failed to give proper consideration to article 10(4), (5) and (6) of the AIE Regulations.
17. Article 9(1)(b) of the AIE Regulations provides that a public authority may refuse to make available environmental information where disclosure of the information requested would adversely affect the course of justice (including criminal inquiries and disciplinary inquiries).
18. 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.
19. Article 9(1)(b) 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.
20. The wording of article 9(1)(b) of the AIE Regulations makes it clear that there must be some adverse effect on the course of justice in order for the exception to apply. Accordingly, when relying on article 9(1)(b) the public authority must set out the reasons why it considers that disclosure of the information at issue could specifically and actually undermine the course of justice (see C-619/19 Land Baden-Württemberg v DR). The risk of the course of justice being undermined must be reasonably foreseeable and not purely hypothetical.
21. The requirements outlined above mean that a public authority must examine the information in question before it can invoke grounds for refusal of that information. Where grounds for refusal are identified, the information should be examined to determine whether certain information may be released without adversely affecting the course of justice. It is not appropriate to apply the exemption in a blanket fashion to records identified as relevant to a request.
22. The Council has not set out how disclosure may adversely impact the course of justice. Merely stating a connection to ongoing proceedings, or the possibility of proceedings, is not sufficient to engage the provisions of article 9(1)(b) and does not automatically render records exempt from release. The Council have confirmed there are no current or pending legal proceedings and no unauthorised development had taken place at the site at the time and the file remained open for monitoring. The Council have not demonstrated there are current legal proceedings ongoing or any adverse effect on the course of justice. Having examined the relevant information, I cannot see how the release of the information, in redacted form, would adversely affect the course of justice in any way, and I therefore find that article 9(1)(b) does not apply to the information sought.
23. Article 8(a)(ii) of the AIE Regulations provides that a public authority shall not make available environmental information where disclosure of the information would adversely affect the interests of any person (including legal persons such as companies) who, voluntarily and without being under, or capable of being put under, a legal obligation to do so, supplied the information requested, unless that person has consented to the release of that information. This provision transposes article 4(2)(g) of the AIE Directive, which in turn is based on Article 4(4)(g) of the Aarhus Convention.
24. When relying on article 8(a)(ii) of the AIE Regulations a public authority must show that –
a) the person who supplied the information at issue to the public authority did so voluntarily and without being under, or being capable of being put under a legal obligation to do so,
b) the person did not consent to the release of that information; and
c) the disclosure of the information at issue would adversely affect the interests of the person.
25. The Council identified five records which they deemed relevant to the request;
1. Enforcement complaint received by E-mail
2. E-mail thread ending 14-2-2024, between Council and Agent
3. E-mail thread ending 15-2-2024, between Council to Agent
4. Acknowledgment letter to complainant
5. Planning inspectors report- Initial Assessment
While the Council applied exemption 8(a)(ii) to each of the records, I consider that this exception can only be applied to information provided to a public authority. Therefore, having examined each of the five (5) records, I am satisfied that the only records which could potentially engage article 8(a)(ii) of the AIE Regulations are Records 1.
26. As with all exceptions under article 8 and 9 of the AIE Regulations, the threshold necessary to justify non-disclosure, because of adverse effect, is a high one. In the case of article 8(a)(ii), the effect must be on the interests of the person who voluntarily provided the information, and it must be adverse. While the Council have maintained release of the information would“impact on the ability of the Council to conduct investigations into complaints received in a confidential manner” , they have failed to provide an argument on how release of the information would adversely affect the interests of the person, which is a condition required to rely on article 8(a)(ii). The appellant is not seeking personal information and has explicitly excluded personal information regarding complainants from the scope of their request. I therefore fail to see how release of the records with personal information redacted could result in any adverse effect and find in this case the Council cannot rely on exemption 8(a)(ii) of the AIE Regulations.
27. I would also note that I do not agree with the Council’s contention that the release of information in this specific case, with the personal information now being out of scope, would impact in any way on the ability of the Council to conduct investigations into complaints received in a confidential manner. The Council has not provided sufficient information to show that would be the case and given the nature of the information in this case, I do not see how any adverse effect could occur.
28. Article 8 (a)(iv) permits refusal to disclose information where to do so would adversely affect the confidentiality of the proceedings of public authorities, where such confidentiality is otherwise protected by law.
29. When relying on article 8(a)(iv) of the AIE Regulations a public authority must identify the proceedings to which the information at issue relates and show that those proceedings have an element of confidentiality, that the confidentiality of those proceedings is protected by law, and that the disclosure of the information at issue would adversely affect that confidentiality. The public authority must demonstrate a clear link between disclosure of the specific information that it has withheld and any adverse effect. The risk of the confidentiality being undermined must be reasonably foreseeable and not purely hypothetical.
30. The term “proceedings” is not defined in the AIE Regulations, the AIE Directive, or the Aarhus Convention. However, the CJEU in C-204/09 Flachglas 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).
31. When relying on article 8 (a)(iv), a public authority must establish all the factual elements set out in the article and demonstrate that the disclosure of the information at issue would adversely affect the interests concerned. The Council has not clearly identified the proceedings to which the information at issue is said to relate, it has not shown 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.
32. Furthermore, I cannot find that the requested information relates to the “final stages of a decision-making process” as required by article 8(a)(iv), and therefore, article 8(a)(iv) cannot apply. While Record 5 consists of a report by a Planning Inspector who makes a recommendation in respect of the alleged unauthorised development, this report does not constitute a final decision in respect of the matter. The other records clearly predate this and do not relate to the final stages of a decision making process.
33. Articles 8(a)(ii) and 8(a)(iv) 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.
34. The Council has sought to apply the exemption in a blanket manner. It has failed to adequately consider the question of partial disclosure in accordance with article 10(5) or the requirements, set out in articles 10(3) and 10(4), to consider the individual circumstances of the request, to interpret grounds for refusal restrictively and to weigh the public interest served by disclosure against the interest served by refusal. The appellant has confirmed he is not seeking any personal information and while the Council identified and redacted records they then failed to provide them to the appellant.
Decision
35. Having carried out a review under article 12(5) of the AIE Regulations, I annul the Council’s decision. I find that the Council was not justified in refusing the appellant’s request for records on the basis of articles 9(1)(b), 8(a)ii and 8(a)(iv) of the AIE Regulations. I hereby, direct the Council to release the requested environmental information, with personal information redacted, to the appellant.
36. 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