Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-115477-R1Q9T3
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in refusing access to a note of a meeting of the strategic housing development consultative forum, certain additional records, and affiliation information of forum attendees on the basis that the information concerned falls outside the scope of the appellant’s request.
6 June 2024
1. On 8 September 2021, the appellant submitted a two-part request to the Department regarding information related to the strategic housing development (SHD) consultative forum (the forum). Specifically, it sought access to:
(i) “All meeting agendas and copies of meeting minute
(ii) Copies of all meeting materials submitted to or considered by the forum (for example studies, presentations, reports, etc).”
2. On 7 October 2021, the Department issued its original decision, wherein it part-granted the appellant’s request. The Department stated that it had identified 10 relevant records and had redacted certain information under articles 8(a)(i) and 8(a)(iv) of the AIE Regulations. It outlined that information was withheld from all of the records on the basis that it comprised personal information; from records 2, 5, 7, and 9 on the basis that it concerned an ongoing deliberative process; and from record 9 on the basis that it comprised legal advice received. In respect of part 1 of the appellant’s request, the Department explained that no formal agendas were provided to the forum, however it had included the meeting invite for each forum meeting, which, in some cases, set out the topics to be discussed. In respect of part 2, the Department noted that it had included all correspondence and documents submitted to/considered by the forum, including draft proposals and presentations.
3. On 8 October 2021, the appellant sought an internal review of the Department’s decision. In doing so, it made the following contentions:
4. On 5 November 2021, the Department issued its internal review decision. It affirmed its decision to part-grant the appellant’s request, however varied the basis on which it did so. In addition to relying on articles 8(a)(i) and 8(a)(iv) of the AIE Regulations, it made the following comments in response to the appellant’s contentions:
5. On 5 November 2021, the appellant submitted an appeal to this Office, regarding the Department’s decision to refuse “to grant full access to environmental information relating to the SHD forum.”
6. I am directed by the Commissioner for Environmental Information to carry out a review under article 12(5) of the AIE Regulations. In so doing, I have had regard to the correspondence between the Department and the appellant as outlined above and to correspondence between my Office and both the Department and the appellant on the matter, as well as relevant third parties. I have also examined the content of the records concerned. In referring to records, where appropriate, I have adopted the numbering system used by the Department on the schedule of records provided to the appellant at original decision. In addition, I have had regard to:
7. What follows does not comment or make findings on each and every argument advanced but all relevant points have been considered.
Telephone Numbers and Meeting Access Codes / Links (Records 1, 3, 4, 6, and 8)
8. During the course of this review, the appellant informed this Office that it was not seeking a review regarding the redaction of any telephone numbers or meeting access codes. Having examined the 10 records part-granted by the Department, I am satisfied that all of the information redacted from records 1, 3, 4, 6, and 8, which can be described as email meeting invites, comprises telephone numbers and meeting access codes / links and falls outside the scope of this review. No further information was withheld from records 1, 3, 4, 6, and 8; therefore, they are not at issue.
Information no Longer Being Refused (Records 2, 5, 7 and 9)
9. The Department, in its submissions to this Office, stated that it was no longer refusing access to the information that it considered to come within the scope of the appellant’s request withheld from records 2, 5, 7 and 9 under articles 8 or 9 of the AIE Regulations (i.e. the redacted information contained in those records other than the affiliation information). As that information is no longer being refused, I am satisfied that it is not at issue and falls outside the scope of this review. If it has not already done so, I expect the Department to release that information to the appellant.
Email Addresses – Affiliations (Records 2, 5, 7, 9, and 10)
10. The Department, in its internal review decision, indicated to the appellant that it considered the parts of the email addresses that revealed the affiliations of those who took part in the forum to fall outside the scope of its request. The affiliation information concerned was redacted from the email headers of records 2, 5, 7, 9, and 10. It is the appellant’s view that the affiliation information concerned does fall within the scope of its request and should be released.
Additional Records/Information
11. The appellant, in its submissions to this Office, noted its view that there were further relevant records other than the 10 records identified and part-granted to it, which had not been considered by the Department. In support of its view, it contended that the “bookmarks” section of the pdf document it had received containing the 10 redacted records, referenced additional records that had been removed. The Department, in its submissions to this Office, contended that the records which had been removed fall outside the scope of the appellant’s request. The appellant disagreed, submitting that the records concerned do fall within the scope of its request and should be released.
12. During the course of the review, the Department also identified a note of the first meeting of the forum entitled “Summary of Forum Meeting 10 December 2020, 10am” (5 pages) (the note). Again, the Department indicated its position that the note falls outside the scope of the appellant’s request and the appellant disagreed, submitting that the note concerned does fall within the scope of its request and should be released.
Scope
13. In the particular circumstances of this case, I am satisfied that the scope of this review is concerned with whether the Department was justified in refusing access to the affiliation information of forum attendees contained within records 2, 5, 7, 9, and 10, the additional records removed from the “bookmarks” section of the pdf document provided, and the note of the first meeting of the forum on the basis that the information concerned falls outside the scope of the appellant’s request.
14. A review by this Office is considered to be de novo, which means that it is based on the circumstances and the law as they pertain at the time of this decision. 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.
15. It is clear from the comments of the Court of Appeal in Redmond & 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.
16. I accept that there is an obligation on public authorities to assist requesters where a request has been made in too general a manner (article 7(8) of the AIE Regulations refers), however, I am satisfied that in this case the appellant’s request was specific and clear. At part 1, it sought access to all meeting agendas and copies of meeting minutes. At part 2, it sought access to copies of all meeting materials submitted to or considered by the forum (e.g. studies, presentations, reports, etc.).
Email Addresses – Affiliations (Records 2, 5, 7, 9, and 10)
17. As noted, the Department, in its internal review decision, indicated to the appellant that it considered the parts of the email addresses that revealed the affiliations of those who took part in the forum to fall outside the scope of its request.
18. The Department, in its submissions to this Office, further noted its view that the affiliations did not relate to meeting agendas, meeting minutes, or meeting materials submitted to or considered by the forum. The appellant, in its submissions to this Office, contended that the affiliations came within the scope of its request. In doing so, it stated that the email addresses partially disclosed were “in the meeting invites which [the Department] says were released in place of agendas. An agenda is a document and all of its contents are within scope…”
19. During the course of this review, the investigator informed the appellant of her view that the affiliation information concerned was redacted from the email headers of records 2, 5, 7, 9, and 10. She noted that those records did not appear to be email meeting invites (which were seemingly records 1, 3, 4, 6, and 8), rather they appeared to be emails containing meeting materials submitted to or considered by the forum. She noted that the Department did not consider the meeting materials contained within the body of, or attached to, those emails to be outside the scope of the appellant’s request, just the affiliation information contained within the email addresses of those to whom the emails were sent.
20. In response, the appellant reiterated its view that the affiliation information should be released, noting that the names of the individuals concerned had been provided. It contended that “[n]owhere in the request was there a limitation that said that the affiliations of attendees was not requested. Normally a record of a meeting will name the attendees and who they represent…[T]he affiliations of various attendees can already be inferred from their names…The request simply seeks to have the full record in that regard.” The appellant noted its position that the Department had not sought any clarification from it. It also contended that the Department “is seeking to narrow the scope of the request post-hoc” and that this is “unfair…when there doesn’t seem to be any real issue with the information itself but is descending into ‘angels on the head of a pin’ semantics about the scope of the request.” The appellant submitted that the request must be interpreted objectively and in light of the fact that it does not know what information is held. It noted its view that given that the Department had considered the names to be in scope, the entirety of the email addresses should be considered to be within scope.
21. Having examined the records part-granted, I am satisfied that the affiliation information concerned is redacted from the email headers of records 2, 5, 7, 9, and 10. These records cannot be described as email meeting invites, rather they appear to me to be emails containing meeting materials submitted to or considered by the forum. The Department withheld from the email headers part of the email addresses of certain external forum participants to whom the emails were sent, in most cases disclosing the name of the individual and redacting the domain name / affiliation information.
22. The Department in its original decision, explained that no formal agendas were issued to the forum and instead email meeting invites (records 1, 3, 4, 6, and 8) of each forum meeting were sent which, in some cases, set out the topics to be discussed. The Department also informed this Office that no formal minutes of any meeting of the forum were taken. As noted, the affiliation information concerned is redacted from emails containing meeting materials submitted to or considered by the forum (records 2, 5, 7, 9, and 10). The Department does not consider that the meeting materials contained within the body of, or attached to, those emails to be outside the scope of part 2 of the appellant’s request, just the affiliation information contained within the email addresses of those to whom the emails were sent. It also does not consider the affiliation information to fall within part 1 of the appellant’s request, given that the appellant sought agendas (which it received in the form of the email meeting invites) and meeting minutes.
23. I note the Department’s position. However, given the wording of part 2 of the appellant’s request, wherein it sought copies of all meeting materials submitted to or considered by the forum (e.g. studies, presentations, reports, etc.), and the fact that the Department both considered the remainder of the information contained within the email addresses and the meeting materials contained within the body of, or attached to, the emails from which the affiliation information is redacted to fall within the scope of the appellant’s request, I consider that to exclude the affiliation information from the headers of those emails, providing details relating to the attendees of the forum to whom the information was sent to, is to take an unduly narrow interpretation of the appellant’s request. I find, therefore, that the affiliation information redacted from the headers of records 2, 5, 7, 9, and 10 does fall within the scope of the appellant’s request. Consequently, I conclude that the Department was not justified in refusing access to the affiliation information on the basis that it falls outside the scope of the appellant’s request.
24. For the sake of completeness, having examined the affiliation information, I note that it all relates to individuals working for other public authorities or individuals who engaged with the forum in a professional capacity. I do not consider that any exemption provision provided for in articles 8/9 of the AIE Regulations, including article 8(a)(i), all of which are subject to article 10, provides for the refusal of the information concerned. I am also satisfied that I am not required to further notify or seek additional submissions from the Department or the relevant third parties. Accordingly, I direct release of the affiliation information.
Additional records removed from the “bookmarks” section
25. As noted, the appellant in its submissions to this Office, noted its view that there were further relevant records other than the 10 records identified and part-granted to it, which had not been considered by the Department. In support of its view, it contended that the “bookmarks” section of the pdf document it had received containing the 10 redacted records, referenced additional records that had been removed.
26. Having examined the wording of the appellant’s internal review request, it appears that it solely related to the information redacted from the 10 records part-granted at original decision. Indeed, there was no reference to any further relevant records which the appellant believed to exist in the appellant’s internal review request or its statement of appeal to this Office – the issue was only raised in subsequent submissions made in the course of the appeal to this Office. In cases such as the one at issue, a review by this Office is generally limited in scope by the wording of the appellant’s internal review request and statement of appeal to this Office. Accordingly, further relevant records such as those sought by the appellant would be generally considered to fall outside the scope of the review by this Office on that basis.
27. Notwithstanding the above, I decided that in the particular circumstances of this case, the scope of this review concerned the question of whether the removed records fall within the scope of the appellant’s request. In response to queries from this Office, the Department provided further details regarding the additional records sought by the appellant. It explained that upon receipt of the appellant’s request, an initial search for records was carried out using broad search criteria, to ensure that all relevant records were discovered. It stated that the records located following the initial search were collated into one document and were reviewed to ascertain if they actually fell within the scope of the appellant’s request. The records, which were determined not to fall within the scope of the appellant’s request were then removed from the pdf document, however the reference to them remained in the “bookmarks” section. The Department stated that the additional documents removed consisted of those received from members of the forum, which were submitted to and for the consideration of the Department alone and were not shared with the wider forum. The Department explained that, accordingly, they were considered not to fall within the scope of the request.
28. The appellant submitted to this Office that its original request was sufficiently broad to encompass the additional documents sought. As noted, the appellant’s request was specific and clear. At part 2, it sought access to copies of all meeting materials submitted to or considered by the forum. The Department provided this Office with copies of the additional documents that had been removed. Having examined those documents, I am satisfied that they are written submissions provided by members of the forum to the Department. While I have had regard to the appellant’s arguments, including those set out in its correspondence to this Office dated 13 January 2022, there is no evidence to suggest that the documents were meeting materials submitted to or considered by the forum. I also have no reason to dispute the Department’s comment that they were for the Department’s consideration alone. I find, therefore, that it was reasonable for the Department to conclude that those records fell outside the scope of the appellant’s request. Consequently, I am satisfied that the Department was justified in refusing access to those records on that basis. It is open to the appellant to submit a separate request to the Department for those records, should it wish to do so. It is also open to the Department to release these records to the appellant without such a request.
Note entitled “Summary of Forum Meeting 10 December 2020, 10am” (5 pages)
29. During the course of the review, the Department identified a note of the first meeting of the forum, which it indicated falls outside the scope of the appellant’s request. The appellant, in its submissions to this Office, outlined its position that the note is within the scope of its request, which sought, at part 1, “[a]ll meeting agendas and copies of meeting minute[s].” Again, notwithstanding my comments at paragraph 26 above and the fact that the appellant did not seek access to further relevant records other than those already identified in either in its internal review request or statement of appeal to this Office, given that the Department and appropriate third parties provided submissions to this Office regarding the note and the appellant was provided with an opportunity to respond to those submissions, I decided that in the circumstances of this particular case, the scope of this review concerned the question of whether or not the note falls within the scope of the appellant’s request.
30. The general thrust of the Department’s position is that the note is an informal note of the meeting of the forum on 10 December 2020 that cannot be considered to be meeting minutes and, accordingly, falls outside the scope of the appellant’s request.
31. In its submissions to this Office, the Department outlined that one of its staff members who had attended the first meeting of the forum had prepared the note. The Department stated that the relevant staff member had confirmed that the note was created for her own consideration and was not shared with the other forum attendees, including those from the Department. It stated that the note reflects her interpretation of what individuals said at the meeting. It stated that it was not prepared or issued as a minute and was not shared with the forum attendees for them to verify its accuracy, as would be the case with a formal meeting minute. It stated that the members of the forum were advised at the outset of the first meeting that the information given and the proceedings of the forum were intended to be confidential.
32. As the note sets out the author’s understanding of comments made by other attendees at the forum, it contains a considerable amount of third party information. Accordingly, this Office consulted the relevant third parties during the course of this review and asked for their views on the note. Provided below is a summary of some of the responses received:
33. This Office wrote to the appellant, informing it that “the Department says that [the note] should not be considered minutes as the parties involved were not told that minutes would be taken and the note was not circulated to attendees after the meeting as would be common practise with minutes. The note is essentially aide-memoire for one of the attendees from the Department and could be considered to be less detailed as formal minutes would be...”. The appellant replied stating:
“I confirm that I consider [the note] to be within scope. A request has to be interpreted purposively and broadly. A requestor when making a request has no idea what information exists, the format or how it has been managed. Clearly when requesting minutes what was looked for was recorded information of the meetings in question. The fact that the attendees were not told that minutes would be taken or the note wasn’t circulated or is labl[l]ed an ‘aide memoire’ or that it is less detailed etc has no bearing on this. If it were the case that the scope of a request was be determined by reference to arbitrary factors outside the knowledge or control of the requestor it would represent a disproportionate formalism to the interpretation of the scope of a request...”
34. In subsequent correspondence with the appellant, this Office, among other things, provided it with the summary of the submissions of the Department and the third parties described at paragraphs 31 and 32 above.
35. In response, the appellant reiterated its view that the note falls within the scope of its request and cannot be refused under the AIE Regulations. Its submission included the following comments:
36. While I note the appellant’s comments, including, that its request should be interpreted purposively and broadly, this cannot be unlimited and regard must be had to the wording of the request, which, in this case was specific and clear. At part 1, it sought access to all meeting agendas and copies of meeting minutes. I am satisfied that the note can generally be described as an informal note which sets out the author’s understanding of the points made by various attendees at the first forum meeting. The note was prepared by a junior grade Department staff member and recollects her understanding of the meeting. Having examined the content of the note and the submissions made by the Department and the third parties, I am satisfied that the note was created for her own consideration and, if it were to have been meeting minutes it would have contained different information and it would have been circulated to the individuals who attended the forum for their feedback on the comments attributed to them. Accordingly, notwithstanding the appellant’s submissions, I am satisfied that the note does not constitute meeting minutes and falls outside the scope of the appellant’s request. Consequently, I conclude that the Department was justified in refusing access to the note on that basis. It is open to the appellant to submit a separate request to the Department for the note, should it wish to do so.
37. Having carried out a review under article 12(5) of the AIE Regulations, I hereby vary the Department’s decision. While I affirm the Department’s decision to refuse access to the note of the meeting of the forum and the additional records removed from the “bookmarks” section of the pdf document provided on the basis that they fall outside the scope of the appellant’s request, I annul its decision to refuse access to the affiliation information redacted from the headers of records 2, 5, 7, 9, and 10. I am satisfied that the affiliation information concerned does fall within the scope of the appellant’s request and direct its release. Furthermore, if it has not already done so, I expect the Department to release the information coming within the scope of the appellant’s request contained within records 2, 5, 7 and 9, which it stated it was no longer refusing under articles 8 or 9 of the AIE Regulations.
38. 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