Ó Oifig an Choimisinéara um Fhaisnéis Comhshaoil
Cásuimhir: OCE-125862-L9X2X8
Foilsithe
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Whether the Department was justified in withholding relevant information under articles 8(a)(i) and 9(1)(b) of the AIE Regulations
29 August 2024
1. On 23 January 2022, the appellant submitted a request to the Department of Housing, Local Government and Heritage (the Department) seeking environmental information, under the AIE Regulations, as follows:
(i) 2021 data for the number of bog plots being cut in raised bogs in Special Areas of Conservation (SACs) and Natural Heritage Areas (NHAs).
(ii) How the number of plots cut is related to Ha / volume of peat extracted in each SAC/NHA.
(iii) Any NPWS or third party analysis conducted on or from the data collected, or reports produced from this data.
(iv) Most recent flyover photos for each SAC/NHA flown in 2021.
(v) Enforcement actions logged in relation to illegal peat extraction in 2021.
2. The Department responded to the appellant’s request on 15 March 2022. In its Decision, the Department indicated that it had identified one record, relating to part (i) of the request, to which access was granted. It informed the appellant that the number of plots cut was not related to Ha/volume of peat extracted. It also stated that the information being released to him did not encompass NHAs and contained “the sole NPWS analysis conducted on or from the data collected or reports”. It went on to note, in response to part (iv) of the appellant’s request, that the information held by or for it consisted “of a single cache of photographs generated by aerial monitoring from two rounds of flights” and that this information was being refused under articles 8(a)(i) and 9(1)(b) of the Regulations.
3. The appellant submitted a request for an Internal Review “on the refusal of the images” on 16 March 2022. He requested that, considering the impending start of the turf cutting season, the National Parks and Wildlife Service (NPWS) would consider turning around the internal review in less than the 30 days allowed for by the Regulations. The NPWS is a sub-agency of the Department with responsibility for monitoring and enforcement of legislation with respect to SACs and NHAs.
4. On 14 April 2022, the Department responded to the appellant with an Internal Review Decision letter, affirming its Original Decision.
5. On 1 July 2022, the appellant appealed to this Office.
6. I am directed by the Commissioner for Environmental Information to carry out a review of these appeals under article 12(5) of the AIE Regulations. In so doing, I have had regard to the submissions made by the parties to each appeal. In addition, I have had regard to:
• 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);
• the Aarhus Convention—An Implementation Guide (Second edition, June 2014) (‘the Aarhus Guide’);
• the decision of the High Court in Right to Know v An Taoiseach [2018] IEHC 372; and
• the decision of the Court of Justice of the European Union (CJEU) in C-619/19 Land Baden-Württemberg v DR (Land Baden-Württemberg).
7. In accordance with article 12(5) of the AIE Regulations, the role of this Office is to review the internal review decision of the Department and to affirm, annul or vary it.
8. My review in this case is concerned with whether the Department is entitled to rely on articles 8(a)(i) and/or 9(1)(b) of the AIE Regulations to refuse access to information within the scope of the appellant’s request.
9. Before proceeding with the substantive review in this case, I consider it important to note that the reasoning provided by the Department to the appellant at both original decision and internal review stage is not sufficient to comply with its obligations under articles 7(4) and 11(4) of the AIE Regulations. At both stages, the Department simply set out the provisions of the articles on which it was relying to refuse access to information requested by the appellant. The High Court has made it clear, in Right to Know v An Taoiseach that “the mere invoking of the statutory ground upon which disclosure of environmental information may be exempted cannot…constitute a sufficient reason for the refusal”. I would encourage the Department to take steps to ensure that additional reasoning is provided to a requester in the event of future refusals of environmental information under the AIE Regulations, bearing in mind that the Courts have noted on a number of occasions that the purpose of such a duty to give reasons is to enable a person affected by that decision to exercise their right of appeal or judicial review in accordance with their constitutional right to access to justice such that the reasons given must be sufficient to “disclose the essential rationale on foot of which the decision is taken” (see Meadows v Minister for Justice, Equality & Law Reform [2010] IESC 3).
10. It should be noted that the National Parks and Wildlife Service (NPWS) is part of the Department, and not a separate legal entity. Therefore, any reference to the NPWS below can also be construed as a reference to the Department.
11. The Department made the first of its submissions to this Office on 16 August 2022. It confirmed its position as set out in its original decision and internal review but provided no other supporting evidence or rationale for its decision.
12. It also provided a Schedule of Records which identified two items. The first record, which was provided to the appellant, is an excel sheet which provides detail on the name of the SAC in question, the SAC Site Code, the county in which the SAC is located and the number of plots cut on that SAC in 2021. The second record, which was withheld by the Department, is described in the Schedule as a “cache of aerial monitoring photos” held by a named NPWS ranger relating to the 2021 SAC turf cutting season.
13. The Department state that the photographs are of a sufficient quality to allow the identification of turf cutting activity on the land photographed, as well as where the turf was being cut, with relative ease. Accordingly, it is the Department’s position that the photographs contain personal information relating to the owners of the various plots of land.
14. On 9 August 2023, in response to a request issued by this Office to the Department for final submissions, the Department made further submissions in which it stated that “from the records examined it is apparent that:
• The photography took place in 2021 with a private company employed to undertake aerial surveillance of areas where there may be turf cutting ongoing.
• The photography would be of sufficient quality to allow the identification of turf cutting activity on the land photographed, as well as where turf was being cut, with relative ease.
• The photography was considered mainly useful for intelligence and monitoring purposes”.
15. The authority submitted, on that basis, that it was appropriate to rely on articles 8(a)(i) and 9(1)(b) to withhold the photographs in question. As part of its submissions on the public interest balancing exercise mandated by articles 10(3) and 10(4) of the Regulations, the Department noted that “the photography can and was used to establish the number of bog plots being cut in raised bogs in Special Areas of Conservation (SACs) on the days the aerial survey took place in 2021” and argued that “this information had already been extracted by the NPWS and was provided to the requester when responding to their original request”. It submits that “the main additional result from releasing the photography would be the identification of the location of individual plots of land where turf cutting was taking place, which would allow individual owners to be identified with relative ease” and that “there does not appear to be a clear public policy justification in identifying these individuals – or releasing enough information to allow for their identification – to offset the reasonable expectation of confidentiality and negate the privacy rights of the landowners in question”. It also submits that “these photographs were not intended to be used as the sole basis for prosecutions/court action” and that “such release could have reputational impacts for these individuals and could lead to additional complications in future compliance and enforcement measures undertaken by the NPWS, including the ability of the NPWS to manage stakeholder relationships both with individuals and representative bodies and to take specific enforcement actions”.
16. After examination of these records I have noted that:
• Record 1, which was provided to the appellant, contains the name and identification code for each SAC in question as well as the number of plots cut in that SAC for 2021.
• Record 2 consists of approximately 1600 aerial photographs.
17. Further submissions were provided by the Department in June 2024, the details of which are set out below. The Department has relied on articles 8(a)(i) and 9(1)(b) to withhold Record 2.
18. 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). 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, which provides for certain limitations on the ability of a public authority to refuse environmental information. 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 and 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.
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. In submissions to this Office, the Department argues that release of the photographs “could lead to additional complications in future compliance and enforcement measures undertaken by the NPWS, including the ability of the NPWS to manage stakeholder relationships both with individuals and representative bodies and to take specific enforcement actions”.
22. The Department provided a more detailed explanation of its reliance on article 9(1)(b) in its submission of 04 June 2024. In this submission the authority stated:
• It should be noted that it is the view of the NPWS that the fact the photographs are now two years old is not relevant to the release of the photographs. The evidentiary nature of the photographs and the issues that it identifies/demonstrates would not be significantly diminished at this stage.
• In relation to the application of natural justice to the individual landowners, the entry of these photographs to the public domain will specifically allow the identification of individual plots where potentially illegal activities have taken place. Landowners and rights-holders will be identifiable either through local knowledge or online searching
• In terms of ongoing investigations, the NPWS is currently engaged with the European Commission regarding its obligations and requirements in relation to the Habitats Directive (Directive 92/43/EEC). Earlier this year, the European Commission referred Ireland to the Court of Justice of the European Union for failure to protect designated raised bog and blanket bog habitats from turf cutting under the Directive.
• It should also be noted that an investigation does not ‘close’ because court action has not yet been taken – the NPWS engages with individuals in alternative avenues of changing behaviours and managing the issues raised, while keeping the option of enforcement action through the courts as a tool to be used if necessary. Infringement proceedings against Ireland have since escalated to the European Court of Justice following a referral on 13th March of this year. The Department is not in a position to determine the exact case being made against Ireland in CJEU. Therefore, on that basis, until such time as Ireland receives and reviews the Court papers, it would be premature to release any records that could be prejudice the defence of that case
23. The Department also stated that the release of the requested photographs would “reduce the number of alternative engagement routes available to the NPWS and affect the risk-based enforcement approach currently taken, reducing the options available to effectively two options: no action or prosecution. It will affect the ability of the Department to consider and prepare litigation measures in confidence before advancing actions. It should also be noted that an investigation does not ‘close’ because court action has not yet been taken – the NPWS engages with individuals in alternative avenues of changing behaviours and managing the issues raised, while keeping the option of enforcement action through the courts as a tool to be used if necessary. It is also reasonably foreseeable that release of these photographs will result in the NPWS suspending and re-evaluating aerial monitoring in order to preserve its relationship with the communities with which it operates.” It further stated that the Department “does not have any enabling legislation with provisions that would allow it to operate a ‘name-and-shame’ list of individuals who may potentially have broken the law in respect of turf cutting or other activities that may occur in the areas the subject of aerial photography. Providing these photographs, containing identifiable plots of land, would be tantamount to publishing such a list.”
24. The appellant has been provided with a summary of the submissions, as set out above, in which the authority set out in further detail the reasons for its reliance on article 9(1)(b) however the appellant declined to provide comment on this aspect of the submission.
25. Having considered the submissions of the Department, I am satisfied that it has been established that the release of the photographs would adversely affect the course of justice as the authority has stated that the release of this information would prejudice infringement proceedings currently being taken against Ireland. I accept that the release of the photographs in question may, as indicated by the authority, prejudice the defence of that case. I also find that the Department has established that release might lead to the identification of certain landowners who might be “named and shamed” outside of any judicial process, adversely affecting their right to justice.
26. I therefore find that article 9(1)(b) of the AIE Regulations applies to the information sought.
27. Given that I have found the information in question to be protected under article 9(1)(b) of the Regulations I am not required to go on and consider the applicability of the other exemption provision relied upon, namely, article 8(a)(i) of the AIE Regulations.
Public Interest Test
28. As I have concluded that the information sought comes within article 9(2)(b) of the AIE Regulations, I will consider whether the public interest served by disclosure outweighs the interest served by refusal as required by article 10(3).
29. In favour of disclosure, I have considered the general public interest in disclosure of environmental information, and information related to alleged illegal turf cutting. As set out in the submissions of the Department, earlier this year, the European Commission referred Ireland to the Court of Justice of the European Union for failure to protect designated raised bog and blanket bog habitats from turf cutting under the Directive. The allegation is that the bogs in question have been degraded due to drainage and continued turf cutting. There is therefore a clear public interest in the release of inform
30. In favour of refusal, I consider the matters set out in the submissions of the Department, namely that the release of the information sought may negatively affect the ability of the NPWS to use alternative engagement prior to, or as an alternative to formal enforcement proceedings. These photos have been taken in an effort to protect the environment, and I find that the Department has established that release of the photos would mean that the NPWS may not be able to carry out this role as effectively, as it would be hampered in engaging with the local community. In addition, I note that need by the Department to effectively prepare its response to infringement procedures initiated by the European Union.
31. In the circumstances of this particular case, I find that the interest in disclosure is outweighed by the interest in refusal.
32. In accordance with article 12(5) of the AIE Regulations, I have reviewed the decision of the Department. I find that the Department was justified in refusing to provide access to the relevant information, as set out within Record 2, under article 9(1)(b) of the AIE Regulations and therefore I affirm the decision of the Department.
33. 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